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( Founder : Late Sri G.S. GUPTA)

FORTNIGHTLY(Estd: 1975)

Law ummaryR e g d . N o . P R A K A S A M / 1 3 / 2 0 1 5 - 2 0 1 7 R . N . I . N o . A P E N G / 2 0 0 4 / 1 5 9 0 6

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2017 Vol.(3) Date of Publication 15-10-2017 PART - 19

Associate Editors:

ALAPATI VIVEKANANDA, Advocate

ALAPATI SAHITHYA KRISHNA, Advocate

Editor:

A.R.K.MURTHY, Advocate

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( Founder : Late Sri G.S. GUPTA)

FORTNIGHTLY(Estd: 1975)

Law ummary

PART - 19 (15th OCTOBER 2017)

Table Of Contents

Journal Section ................................................................................................ 9 to 18

Reports of A.P. High Court ........................................................................ 89 to 132

Reports of Madras High Court ....................................................................... 27 to 32

Reports of Supreme Court .......................................................................... 25 to 38

Interested Subscribers can E-mail their Articles to

[email protected]

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NOMINAL - INDEX

SUBJECT - INDEX

Gopu Srinivas Reddy @ Parandamulu Vs. The State of A.P., (Hyd.) 112K.Nainar Chettiar & Ors., Vs. Rusabali & Ors., (Madras) 27Marishetty Peda Gangaram Vs. Chukka Hanumandlu & Anr., (Hyd.) 108M/s.Lokesh Foundaries Pvt.Ltd. Vs. M/s.Varun Motors & Ors., (Hyd.) 123M/s.Meters & Instruments Pvt.Ltd., Vs. Kanchan Mehta (S.C.) 35Parbatbhai Aahir @ Parbatbhai Bhimsnhbhai Karmur& Ors.,Vs.State of Gujarat (S.C.) 25Smt.P.Veda Kumari & Anr., Vs. The Sub Registrar, Hyd., & Anr., (Hyd.) 89

CIVIL PROCEDURE, Sec.2(17) and Order XVI Rule 6 – CIVIL RULES OFPRACTICE, Rule 129 – BANKERS BOOK EVIDENCE ACT, Sec.4 – Aggrieved by orderpassed by trial court, at the instance of first respondent in a suit for specific performance,directing second respondent/ Bank to produce certain documents, appellant preferredpresent revision.

First respondent filed an application under Rule 129(1) of Civil Rules of Practice,praying for summoning from the bank, the entire correspondence to One Time Settlementproposal between petitioner and the bank – Trial court allowed the application.

Held – Object behind Bankers Book Evidence Act is to ensure that originalbooks of accounts are retained by bank to enable them to carry on their day-to-daytransactions – This object is not stultified by production of some correspondence relatingto a One Time Settlement proposal between petitioner and the bank - Endeavour ofevery court should be to find out the truth, to enable the court to render justice – Thesummoning of documents in question, would certainly enable the court to arrive at thetruth –This Court finds absolutely no reasons to interfere with the Order of Trial court- Revision petition is dismissed. (Hyd.) 123

CIVIL PROCEDURE CODE, Secs. 10 & 151 and Order XIII Rule 9 - Whetheran interim order directing stay of all further proceedings passed by appellate court inappeal or by revisional court in revision, operates as stay in considering the interlocutoryapplication filed in the trial court or bars only from proceeding with the trial of the suit?

Petitioners filed an IA seeking return of original registered sale deeds filed by

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3 Subject-Indexthem to avail bank loans – Trial court dismissed IA on the ground that High Court hadgranted stay of all further proceedings of suit, till disposal of appeal.

Held – Section 10 of CPC projects only stay of trial of suit in which matterin issue is also directly and substantially in issue in a previously instituted suit betweensame parties – This provision does not prevent or bars the court from passing incidentalorders required to meet the ends of justice –Any incidental orders not affecting trialof the suit nor decides rights of parties conclusively can be passed – Trial court hasnot exercised its jurisdiction properly – Petitioners are permitted to take original registeredsale deeds filed into courts by substituting with the certified copies with an undertakingto produce same as when required by the court – Civil Revision Petition is allowed.

(Hyd.) 108

CIVIL PROCEDURE CODE,Sec.146 and 151 and Order – IX, Rule 13 – CivilRevision – Application preferred by petitioners was not entertained in the Trial courtto set aside ex parte preliminary decree and ex parte final decree passed in the suitproceedings.

Petitioners purchased one of the items of suit scheduled properties pendentelite – Petitioner contends that the parties of the suit in collusion, committed fraud bynot bringing to the knowledge of the court about alienations made pendente lite.

Held – It is not established by petitioners as to how they could maintain asingle application to set aside both ex parte preliminary decree and ex parte final decreepassed and petitioners have not stated as to when they came to know about the same– Petitioners should have moved necessary applications to condone delay in filingapplication to set aside ex parte decrees passed in the suit – Though a transfereependente lite is entitled to maintain application under Order IX Rule 13 of C.P.C., toset aside ex parte decrees passed against his transferor but the application preferredby petitioners had not conformed the requirements of law – Application laid by petitionersis not maintainable – Civil revision petition is dismissed. (Madras) 27

CRIMINALPROCEDURE CODE, Secs.374(2) and 235(2) – INDIAN PENALCODE,Sec. 302 – Appellant questioned the judgment of the trial court, where by heis sentenced to undergo imprisonment for life – Instant case is based on circumstantialevidence.

Homicidal death of B. Laxmi by drowning allegedly committed by her son-in-law (appellant) by pushing her into agricultural well since she forced him to revealwhereabouts of her missing daughter, renuka – Appellant was suspected by his wife

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Subject-Index 4renuka due to his physical relationship with women of loose character, which in turnmade him to get vexed up with her – Appellant is also alleged of killing renuka.

Held – In the cases based on circumstantial evidence, circumstances from which

inference of guilt is sought to be drawn, must be cogently and firmly establish the

guilt of appellant – Circumstances, taken cumulatively, should form a chain so complete

that there is no escape from conclusion that within all human probability the crime

was committed by appellant and none else – No such evidence is available on record

– Even at the time of inquest, there were no witnesses to identify dead body and under

these circumstances, I.O. ought have collected blood samples, soft tissues, hair etc.,

from dead body and preserved the same and could have sent them to Forensic Science

Laboratory to establish the identification of dead body – Investigating officers are required

to subject the dead body for its proper identification by following required procedures

to conduct DNA test – Prosecution failed to establish complete chain of circumstances

beyond reasonable doubt - Appellant is acquitted of the charges framed against him

– Criminal appeal is allowed. (Hyd.) 112

CRIMINAL PROCEDURE CODE, Sec.482 – Appellants sought the quashing

of a FIR registered against them – Complainant/ Respondent was approached by appellants

to purchase his land – When respondent followed up for payment of balance amount

from appellants, he was threatened of a forcible transfer of the land.

Appellants advanced a plea before High Court for quashing of FIR on the ground

that they amicably settled dispute with complainant, and even complainant had also

filed an affidavit to that effect – In the view of High Court, it was not in the interest

of society at large to accept settlement and quash the FIR - Prayer to quash FIR has

been rejected.

Held – In forming an opinion whether a criminal proceeding or complaint should

be quashed in exercise of jurisdiction under section 482 of Cr.P.C, by High Court, revolves

ultimately on facts and circumstances of each case and nature of offence committed

and High Court must evaluate whether ends of justice would justify the exercise of

inherent power – There may be criminal cases which have predominant element of

civil dispute and they stand on different footing in so far as exercise of inherent power

to quash is concerned – Instant case involves allegations of extortion, forgery and

fabrication of documents – Supreme Court agrees with the view of High Court – Criminal

appeal stands dismissed. (S.C.) 25

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5 Subject-Index

NEGOTIABLE INSTRUMENTS ACT, Secs.138, 139 & 143 - CRIMINAL

PROCEDURE CODE,Sec.258 and 357(1) (b) – Question as to how proceedings for an

offence U/Sec. 138 of NI Act can be regulated, where the accused is willing to deposit

cheque amount – Whether in such a case, proceedings can be closed or exemption

granted from personal appearance or any other order can be passed.

Respondent filed complaint alleging that appellants were to pay a monthly amount

to her under an agreement – Cheque was given in discharge of legal liability but the

same was returned unpaid for want of sufficient funds – In spite of service of legal

notice amount was not paid.

Held – The object of Sec.138 of NI Act was described to be both punitive as

well as compensatory – Complainant could be given not only cheque amount but double

the amount so as to cover interests and costs – The Law Commission in its 213th

Report, noted that out of total pendency of 1.8 crores cases in the country, 38 lakh

cases (about 20% of total pendency) are related to section 138 of NI Act – Where

cheque amount with interest and costs as assessed by the court is paid by a specified

date, the court is entitled to close proceedings in exercise of its powers U/S 143 of

NI Act read with 258 Cr.P.C – It is open to court to explore possibility of settlement

and consider provisions of plea bargaining – Trial can be on day to day basis and

endeavour must be to conclude it within six months. (S.C.) 35

REGISTRATION ACT, Sec.69 and Rule 26(k) of Andhra Pradesh Rules - SPECIFIC

RELIEF ACT, Sec.31 – Question as to whether there can be cancellation of a registered

document unilaterally by the executant and registration of same by Registering Authorities

and whether writ petition is maintainable for setting aside such deeds of cancellation.

No dispute of facts in present cases – All deeds were executed unilaterally

by executants and these documents were registered by registering authorities – Documents

fall under two category of cases, one relates to period prior to amendment of Rule

26(k) of registration rules; Where as the second category relates to registration of

documents by registering authorities in violation of said Rules after amendment.

Held – Complete and absolute sale deeds can be cancelled at the instance

of transferor only by taking recourse to the civil court by obtaining a decree of cancellation

of sale deed on ground of fraud or any other valid reasons – Instant cases, there is

an alternative remedy of approaching civil court U/S 31 of Specific Relief Act – Even

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Subject-Index 6

it is assumed that action of registering authority was accentuated by fraud, it has to

be proved by specific averments and no such averment is made in these petitions –

Fraud cannot be assumed from a mere registration of a document by registering authority

– Merely because respondent is a State under Article 12 of the constitution, this court

cannot interfere – In order to exercise jurisdiction by this court, action of statutory

authorities must be without any alternative authority and in discharge of public law duty

– Writ petitions are accordingly dismissed. (Hyd.) 89

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ADMISSION OF DOCUMENTS IN EVIDENCE : ANALYSIS

ByY. Srinivasa Rao,M.A (English)., B.Ed., LL.M

Senior Civil Judge, Avanigadda,

There is no God higher than the truth. —— Mahatma Gandhiji

Introduction:

Every Court of law is free to regulate its own affairs within the framework of law. Thereare catena of rulings of our Hon’ble Superior Courts as to receiving and marking ofdocuments. Still, in some situations, some confusion arises while receiving and markingof documents. There are several issues are involved while receiving and marking ofdocuments. Whether an unregistered document can be marked or not? Whether anunregistered document can be received for collateral purpose or not? When the questionof impounding arises ? If a document is insufficiently stamped, what should be done?If an Vakil raises any objection while marking a document, how a judicial officer shouldtackle it? When should decide the question of admissibility of a document? There areseveral doubts usually crept in the mind of young judicial officers while admission ofa document in a civil case. It is my strenuous attempt to give some important case-law on this subject for the benefit of all legal fraternity more in particular for the benefitof judicial officers who are dealing with civil cases.

It is also well-known principle of law that admission of a document in evidence is notto be confused with proof of a document. But, it is curious to note that under Order-13 Rule-4 of the Code of Civil Procedure, when once the document is admitted in evidence,there is a bar under Section-36 of the Indian Stamp Act as regards the objection ofadmissibility of the document. We all know that mere marking of an exhibit does notdispense with the proof of documents. Further, the question of impounding arises whenit is within the meaning of instrument defined by the Stamp Act. The question ofimpounding by court arises when tendered in evidence to exhibit and not from merefiling with plaint. Every Court is free to regulate its own affairs within the frameworkof law.

Ten Fundamental principles as to receiving of documents:-

For ready reference, let me list out ten (10) important fundamental principles with regardto receiving of documents in a suit. I will later on discuss various other aspects with

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support of latest case-law as to receiving, marking and admissibility, proof, relevancy,and genuineness of documents etc.

1.Order VII of CPC relates to the production of documents by the plaintiff whereas OrderVIII of CPC relates to production of documents by the defendant. Under Order-18 Rule-4 of the Code of Civil Procedure, examination-in-chief shall be filed in the form of anaffidavit and the copies thereof shall be supplied to the opposite party. As per the provisoto Rule-4 of Order-18 of the Code of Civil Procedure, the proof and admissibility ofthe documents filed by the respective parties along with the affidavit shall be subjectto the orders of the Court. As per Order-13 Rule-3 of the Code of Civil Procedure, theCourt may at any stage of the suit, reject any document, which it considers irrelevantor otherwise inadmissible, recording the grounds for such rejection. Under Order-13 Rule-4 of the Code of Civil Procedure, when once the document is admitted in evidence,there is a bar under Section-36 of the Indian Stamp Act as regards the objection ofadmissibility of the document.

2. Under Order VIII Rule 1A(4) a document not produced by defendant can be confrontedto the plaintiff’s witness during cross-examination. Similarly, the plaintiff can also confrontthe defendant’s witness with a document during cross-examination

3. By mistake, instead of ‘defendant’s witnesses’, the words ‘plaintiff’s witnesses’ havebeen mentioned in Order VII Rule (4). The Hon’ble Apex Court has given clear directiontill the legislature corrects the mistake, the words ‘plaintiff’s witnesses, would be readas ‘defendant’s witnesses’ in Order VII Rule 4.

4. Order-7 Rule-14(1) C.P.C. enjoins upon the plaintiff to file all his documents alongwith the plaint and that unless he puts forth convincing reasons, the Court cannot allowhim to file the documents at a later stage, the same is unexceptionable.

5.Similar is the provision under the sub-clause (3) of Rule 1 of Order XIII of the Code.Being so, it cannot be disputed that if the plaintiff fails to mention the documents inthe list annexed to the plaint and to place on record a copy of such document, whichis required to be produced under the law at the time of filing of the plaint, the plaintiffis not entitled to produce any additional document thereafter without the leave of theCourt. But, at the same time, it is also to be noted that nothing prevents the Courtin its discretion to grant leave subsequent to the documents being produced beforethe Court even though such documents were not entered in the list annexed to theplaint. It would depend upon the facts of each case.

6. A document filed under Order XIII, Rule 1 as a piece of evidence in supportof the claim of one of the parties to the suit filed along with the pleading may eventually

10 LAW SUMMARY 2017(3)

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be proved or may not be proved by the concerned party depending upon the issuesinvolved in the suit.

7.Order 13, Rule 1 deals with only reception of the documents by the Court as partof the record of the suit. It does not deal with reception of the document as a pieceof evidence. Rule 13 deals with a stage prior to the reception of the evidence in thesuit. Whereas Order 7, Rule 14 deals with different situation altogether.

8. There is a clear embargo on the reception of a document in evidence, which formsthe basis of the suit and filed by the plaintiff along with the plaint, but not filed. TheCourt of course is vested with the discretion under Sub-rule (3) of Rule 14 to receiveany such document contemplated under Rule 14(1) at a belated stage by granting leave.

9. There are three stages for every document before it is proved or disproved:- Anydocument filed by either party passes through three stages before it is held provedor disproved. These are :

a) First stage :-when the documents are filed by either party in the Court; thesedocuments though on file, do not become part of the judicial record;

b) Second stage:- when the documents are tendered or produced in evidence by aparty and the Court admits the documents in evidence. A document admitted in evidencebecomes a part of the judicial record of the case and constitutes evidence.

c) Third stage:- the documents which are held ‘proved, not proved or disproved’ whenthe Court is called upon to apply its judicial mind by reference to Section of 3 of theEvidence Act. Usually this stage arrives 31 the final hearing of the suit or proceeding.See. Sudir Engineering Company vs Nitco Roadways Ltd., 1995 IIAD Delhi 189.

I till now discussed the fundamental principles relating of receiving of documentsin a suit. A word about principles relating of proof, admissibility and genuineness ofdocuments would not be out place. For more clarity, I also mention herewith the relevantcase -law besides the principle of law relating to receiving, marking, admissibility, proof,relevancy and genuineness of documents.

1. Setti Siddamma Vs. S. Ramulu {2004 (6) ALT 418} Mere receiving of a documentdoes not entail any adjudication as to its admissibility or proof.

Mere receiving of a document does not entail any adjudication as to its admissibilityor proof. As was held in Sait Taraji Khimechand VS. Yelamarti Satvam, AIR 1971 SC1865, ‘the mere marking of an exhibit does not dispense with the proof of docments’.

Journal Section 11

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2.IVRCL Assets and holding Lmited Hyderabad Vs AP State Consumer disputesredressal commission {2014(5) ALT 93 (D.B.}If an unregistered and insufficiently stamped document if marked as a document doesnot amount to admitting in documentary evidence.

3.Vanapalli JayalAkshmi Vs A.Kondala Rao {2014(1) ALT 356}An agreement of sale requires payment of stamp duty and penalty before it is admittedin evidence.

4. S.Kala devi Vs V.R. Soma Sundaram and others {2010 94) ALT 58 (SC)}Administration of unregistered agreement of sale in a suit for specific performance.

5.K.B.Saha and Sons (P) Limited Vs Development Consultant Limited{2008(6) ALD 92 (SC)}Collateral purpose: Collated transaction and certain principles of law relating to admissibilityof document requiring of stamp duty and registration of documents

6.Budda JagadeeswaraRao Vs Sri Ravi enterprises Rep By its Proprietor.{2017(2) ALT 736}Once the instrument is duly impounded, it is as good as originally duly stamped.

On the point of “Collateral purpose”...Budda JagadeeswaraRao Vs Sri Ravi enterprises Rep By its Proprietor.{2017(2) ALT 736}There is no prohibition under Section 49 of the Registration Act, to receive an unregistereddocument in evidence for collateral purpose. But the document so tendered should beduly stamped or should comply with the requirements of Section 35 of the Stamp Act,if it is not stamped, as a document cannot be received in evidence even for collateralpurpose unless it is duly stamped or stamp duty and penalty are paid under sections33 and 35 of the Stamp Act.

7. Buddha JagadeswaraRao”s case {2017(2) ALT 736}: Effect of non-registration ofa document shall not affect any immovable property covered by it.

8.Scope of an Agreement of sale :Narandas Karsondas v. S.A. Kamtam and Anr.(1977) 3 SCC 247Section 54 of TP Act makes it clear that a contract of sale, that is, an agreementof sale does not, of itself, create any interest in or charge on such property. A contractof sale does not of itself create any interest in, or charge on, the property. This isexpressly declared in Section 54 of the Transfer of Property Act.


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9. Scope of Power of Attorney : Rajasthan vs. Basant Nehata- 2005 (12) SCC 772011 (3) ALT 19 (SC)H.Siddigui (Dead) by LRs Vs A.Rama Lingam.

10. Mere admission of signature/and denial of its contents does not amount toadmission of such document unless the contents of such document have saleprobative value {AIR 1983 SC 684}

11.State of Bihar Vs Radha Krishna SinghMere admission of document by itself does not automatically prove its contents asits probative value is altogether different.

12. J.Yashoda Vs K. Shoba Rani {2007(3) SCJ 825}Secondary evidence :- Secondary evidence as a general rule, is admissible only inthe absence of primary evidence. In order to enable a party to produce secondaryevidence it is necessary for the party to prove the existence and execution of the originaldocument.

13. G.Sukhendar Reddy Vs M .Pullaiah {2015(3) ALT 575}Principles relating marking and admission of documents.

14. Syed Yousuef Ali Vs Md. Yousuf and Others {2016(2) ALT 557}Stamp duty on possessory contract of sale (Sec Article 47-A of schedule I-A of stampAct)

15. Sait Taraji Khimechand Vs Yelamarti Satvam:The mere marking of an exhibit does not dispense with proof of documents

16. Admission of document: Ferozchin Vs Nawnb Khan {AIR 1928 Lahore 432}Admission of documents under Order 13 Rule 4 of CPC does not bind the partiesand unproved documents cannot be regarded as proved nor do they become evidencein the case without formal proof. See also: Sudir Engineering Company Vs NitcoRoadways Limited.

17. There are two stages relating to documents: Baldeo Sahai Vs Ram Chander &others: {AIR 1931 Lahore 546}

There are two stages relating to documents. One is the stage when all the documentson which the parties rely or filed by them in court. The next stage is when the documentsare proved and formally tendered in evidence. It is at the later stage that the courthas to decide whether they should be admitted or rejected.Sudir Engineering Company Vs Nitco Roadways Limited:

Journal Section 13

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Admission of a document in evidence not to be confused with proof of a document.

18. Production of documents by the parties. Order 7, Rule 14 and Order 8 , Rule1A CPC.

Salem Advocate Bar Association,Tamil Nadu Vs. Union of India, {AIR 2005 SCC 3363}

Held: Order VII relates to the production of documents by the plaintiff whereas OrderVIII relates to production of documents by the defendant. Under Order VIII Rule 1A(4)a document not produced by defendant can be confronted to the plaintiff’s witnessduring cross-examination. Similarly, the plaintiff can also confront the defendant’s witnesswith a document during cross-examination. By mistake, instead of ‘defendant’s witnesses’,the words ‘plaintiff’s witnesses’ have been mentioned in Order VII Rule (4). To avoidany confusion, we direct that till the legislature corrects the mistake, the words ‘plaintiff’switnesses, would be read as ‘defendant’s witnesses’ in Order VII Rule 4. We, however,hope that the mistake would be expeditiously corrected by the legislature.

19. A distinction between the nature of the documents covered under Order7, Rule 14 and Order 13, Rule 1 CPC

Katakam Viswanatham vs Katakam China Srirama Murthy {AIR 2004 AP 522, 2004(3) ALD 338, 2004 (3) ALT 791}.

Held: A document filed under Order XIII, Rule 1 as a piece of evidence in supportof the claim of one of the parties to the suit filed along with the pleading may eventuallybe proved or may not be proved by the concerned party depending upon the issuesinvolved in the suit Order 13, Rule 1 deals with only reception of the documents bythe Court as part of the record of the suit. It does not deal with reception of the documentas a piece of evidence. Rule 13 deals with a stage prior to the reception of the evidencein the suit. Whereas Order 7, Rule 14 deals with different situation altogether. Thereis a clear embargo on the reception of a document in evidence, which forms the basisof the suit and filed by the plaintiff along with the plaint, but not filed. The Court ofcourse is vested with the discretion under Sub-rule (3) of Rule 14 to receive any suchdocument contemplated under Rule 14(1) at a belated stage by granting leave.

20 Receiving the documents in evidence at a belated stage. Lukka Srinivasa Rao @ Venkateswarlu Vs.Lukka Sivaiah {2016 (1) ALT 36}

Observed: As regards the proposition of law viz., that Order-VII Rule-14(1) C.P.C. enjoinsupon the plaintiff to file all his documents along with the plaint and that unless he


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puts forth convincing reasons, the Court cannot allow him to file the documents ata later stage, the same is unexceptionable. Indeed, this Court has reiterated this legalposition in both the judgments cited by learned counsel, as referred to supra. However,whether a party has put forth sufficient reasons for filing the documents at a belatedstage or not, depends upon the facts of each case and no hard and fast rule canbe laid down in that regard.

21. Marking of documents subject to objection.

Sri Kathi Narsinga Rao vs Kodi Supriya And Another, {C.R.P.Nos.4384 of 2015and batch. Dt. 29-09-2016. 2017 (1) ALD 626}.

Observed:1. In fact from the expression in Bipin Shantilal there was a direction as guidanceto be followed by all Courts while marking documents including on secondary evidenceas subject to objections by let open to decide ultimately on the objection while recordingthe evidence, unless it touches stamp duty and registration to decide instantly. In factShalimar Chemicals supra particularly at Para 10 internal Para 20, the expression ofthe Apex Court in RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswamy andV.P.Temple, referred and relied which speaks about objections as to admissibility ofdocuments in evidence may be classified into 2 classes, one is objection that thedocument which is sought to be proved is inadmissible and the other towards the modeof proof.

2. In the case of objection as to admissibility, it is only a procedural aspect, if notraised while marking, it is not open to raise later including on secondary evidence foras good as primary evidence.

3. Whereas objection as to mode of proof even not raised while marking unless it isproved it cannot be considered in evidence for which there is no waiver, thereby evenno objections raised on mode or method of proof there is no waiver to consider documentproved or not from objection can be raised on proof at any time but for on the objectionas to nature of document for its admissibility if not raised while marking that amountsto waiver.

22. Indian Stamp Act is a fiscal statute in nature.Hameed Joharan (D) And Ors vs Abdul Salam (D) By Lrs. And Ors, {2001 (7)SCC 573}Turning attention on to Section 2 (15) read with Section 35 of the Indian Stamp Act,be it noted that the Indian Stamp Act 1899 (Act 2 of 1899) has been engrafted in

Journal Section 15

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the Statute Book to consolidate and amend the law relating to stamps. Its applicabilitythus stands restricted to the scheme of the Act. It is a true fiscal statute in nature,as such strict construction is required to be effected and no liberal interpretation.

23. An unregistered and insufficient stamp documents are inadmissible in evidence

1. Pariti Suryakanthamma and another Vs. Saripalli Srinivasa Rao and another,[2010(2)ALD847, 2010(2)ALT648].

An unregistered and insufficient stamp documents are inadmissible in evidence.

2. Rachakonda Ramakoteswara Rao and Others v. Manohar fuel centre,nereducherla,khammam and another {2003 (2) ALD 638}

“The bar engrafted under section 35 of the stamp act is an absolute bar and, therefore,the document cannot be used for any purpose, unlike the bar contained in section49 of the indian registration act (for brevity ‘the Registration Act’).

23. Buddha Jagadeeswara Rao vs Sri Ravi Enterprises, CIVIL REVISION PETITIONNo.1850 of 2015, Dt. 23-08-2016.If instrument-unregistered and insufficiently stamped runs in two parts, which areseparable-on stamp duty required to be paid on impounded respectively.

V. Anjaneyulu vs Vadapalli Peddanna @ Peddaiah {2005 (5) ALD 206, 2005 (4) ALT674} Also it was held:

A document executed within the meaning of instrument-unregistered and insufficientlystamped, if it runs in two parts which are separable-on stamp duty required to be paidon impounded respectively, the portion which is required to be registered cannot belooked into but for collateral purpose and the other portion which is not required tobe registered can be looked into for main purpose.

24. When a document is sent for impounding, RDO cannot take different view. Purini Krishnaiah vs Nuvvuru Venkata Ramanaiah{AIR 2005 AP 504, 2005 (5) ALD 151, 2005 (6) ALT 202}

Held: - Whatever may be the power of the jurisdiction of the RDO under the IndianStamp Act, while dealing with the document, which came to be presented before himunder Section 33 once a document was referred to him by a Court, he cannot takethe view that the document does not require any impounding, or collection of deficit


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Court fee, at all. Such a course would amount to sitting in appeal, against the orderof the Court, which has sent the document.

25. Collection of stamp duty together with penaltyChintalapudi Annapurnamma vs Andukuri Punnayya Sastry{2000 (3) ALD 649, 2000 (3) ALT 159}

“If an application is made before a Court for sending a document to the Revenue DivisionalOfficer for collection of stamp duty, is the Court bound to do so or is the Court freeto impound the document itself and admit the document on collection of stamp dutytogether with penalty.”

26. Unilateral cancellation of deed cannot be made in the absence of any specificprovision for the Registrar to do so. G.D. Subramaniam v. The Sub-Registrar, {Konur,2009 CIJ 243 Madras}See also. Satya Pal Anand vs. State of M.P. and Others, CIVIL APPEAL NO. 6673OF 2014.

27. Sub-Registrar cannot refuse to register a document.Nagineni Venkata Subba naidu vs. Sub-Registrar, Tirupathi, AIR 2006 AP 363,LAWS(APH)-2005-11-101, 2006(1)ALD679.

28. When objection to be taken for marking of a document?The document to be marked is in presence of parties and they have an opportunityto object for marking and though it is also the duty of the Court to determine judiciallyon sufficiency of stamp duty before admission, same arises generally when an objectionin this regard was taken by the party in opposing for marking as insufficiently stamped.If it is marked not in the presence of opposite party or even from presence an objectionfor marking was taken the question of waiver or taking away the objection does notarise. See. Vemi Reddy Jkota Reddy vs Vemi Reddy Prabhakar Reddy, 2004 (2) ALD627.

Conclusion: The marking of a document as an exhibit, be it in any manner whatsoevereither by use of alphabets or by use of numbers, is only for the purpose of identification.While reading the record the parties and the Court should be able to know which wasthe document before the witness when it was deposing. Absence of putting an endorsementfor the purpose of identification no sooner a document is placed before a witness wouldcause serious confusion as one would be left simply guessing or wondering while wasthe document to which the witness was referring to which deposing. Endorsement of

Journal Section 17

18

an exhibit number on a document has no relation with its proof. Neither the markingof an exhibit number can be postponed till the document has been held proved; northe document can be held to have been proved merely because it has been markedas an exhibit. See. Sudir Engineering Company vs Nitco Roadways Ltd., 1995 IIADDelhi 189. Examining the factum of admissibility of a document and the factum of forminga judicial opinion to know whether it is proved , disproved, or not proved are two importanttasks which are linked to documents when a document is placed before a court. Whenthe Court is called upon to examine the admissibility of a document , the court hasto concentrates only on the document. When called upon to form a judicial opinionwhether a document has been proved, disproved or not proved, the Court has to looknot at the document alone or only at the statement of the witness standing in the box;it would take into consideration probabilities of the case as emerging from the wholerecord. It could not have been hurdle of any law, rule or practice direction to expectthe Court applying its judicial mind to the entire record of the case, each time a documentwas placed before it for being exhibited and form an opinion if it was proved beforemarking it as an exhibit.

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2017(3) L.S. 89

HIGH COURT OF JUDICATURE ATHYDERABAD FOR THE STATE OFTELANGANA AND THE STATE OF

ANDHRA PRADESH

Present:The Hon’ble Mr.Justice

A. Ramalingeswara Rao

Smt.P.Veda Kumari & Anr., ..PetitionerVs.

The Sub Registrar, Hyd.,& Anr., ..Respondents

REGISTRATION ACT, Sec.69 andRule 26(k) of Andhra Pradesh Rules -SPECIFIC RELIEF ACT, Sec.31 –Question as to whether there can becancellation of a registered documentunilaterally by the executant andregistration of same by RegisteringAuthorities and whether writ petition ismaintainable for setting aside suchdeeds of cancellation.

No dispute of facts in presentcases – All deeds were executedunilaterally by executants and thesedocuments were registered byregistering authorities – Documents fallunder two category of cases, one relatesto period prior to amendment of Rule26(k) of registration rules; Where as thesecond category relates to registrationof documents by registering authoritiesin violation of said Rules afteramendment.

Held – Complete and absolute

Smt.P.Veda Kumari & Anr., Vs. The Sub Registrar, Hyd., & Anr., 89

sale deeds can be cancelled at theinstance of transferor only by takingrecourse to the civil court by obtaininga decree of cancellation of sale deedon ground of fraud or any other validreasons – Instant cases, there is analternative remedy of approaching civilcourt U/S 31 of Specific Relief Act –Even it is assumed that action ofregistering authority was accentuatedby fraud, it has to be proved by specificaverments and no such averment ismade in these petitions – Fraud cannotbe assumed from a mere registrationof a document by registering authority– Merely because respondent is a Stateunder Article 12 of the constitution, thiscourt cannot interfere – In order toexercise jurisdiction by this court, actionof statutory authorities must be withoutany alternative authority and indischarge of public law duty – Writpetitions are accordingly dismissed.

Cases referred:1. 2004 (1) ALT 1742. AIR 2007 AP 573. 2017 (4) ALD 124. (2010) 15 SCC 207 : 2012 (1) ALD 90(SC)5. AIR 2011 Mad 166. AIR 1922 PC 567. AIR 1961 Ori 198. AIR 1960 Mad 1 (FB)9. 2010 (6) ALT 14210. AIR 2012 AP 16311. (2015) 15 SCC 26312. 2006 (2) ALD 37113. (2016) 10 SCC 76714. AIR 1990 Mad 25115. (2015) 7 SCC 728W.P.Nos.4174/08 Date:18-8-2017

20

90 LAW SUMMARY (Hyd.) 2017(3)Mr.J.Janakiram Reddy, Advocate for thePetitioner.GP for Revenue (TG), Advocate forRespondent No.1.Mr.T.Sharath, Advocate for the RespondentNo.2.

C O M M O N O R D E R

The following writ petitions are filed for settingaside deeds of cancellation of sale deedsand the gift settlement deeds unilaterallyby the executants.

W.P.No. Name of Deed Date of Execution of Deed

4174 of 2008 Cancellation of Gift Settlement Deed 18.9.2007

11045 of 2009 Cancellation of Gift Sale Deed 25.5.2009

13863 of 2009 Cancellation of Gift Sale Deed 30.6.2009

17002 of 2009 Date of cancellation of sale deed 23.7.2009

20958 of 2009 Cancellation of sale deed 7.8.20099

27568 of 2009 Cancellation of sale deed 18.11.2009

5699 of 2010 Revocation of Gift setttlement deed 30.01.2010

The factual aspects of the matter involvedin the Writ Petitions are not necessary forthe disposal of these Writ Petitions andhence they are not considered.

The consideration of the writ petitionsinvolved the following points:

1. Whether there can be cancellation of aregistered document unilaterally by theexecutant and registration of the same bythe Registering Authorities and whether thesame is valid under law

2. Whether a Writ Petition is maintainablefor setting aside such deeds of Cancellation

There is no dispute of facts in the presentcases since all the deeds were executedunilaterally by the executants and thosedocuments were registered by theRegistering Authorities. The documents fallunder two categories of cases; one categoryof cases relates to the period prior toamendment of Rule 26(k) of the RegistrationRules with effect from 02.06.2014, whereasthe second category relates to theregistration of documents by the RegisteringAuthorities in violation of the said Rulesafter amendment.

The erstwhile State of Andhra Pradesh

21

framed Rules called 'the Andhra PradeshRules under the Registration Act, 1908' underSection 69 of the Registration Act, 1908.The unamended Rule 26 reads as follows.

26. (i) Every document shall, beforeacceptance or registration examined by theRegistering Officer to ensure that all therequirements prescribed in the Act and inthese rules have been complied with, forinstance :

(a) that it has been presented in theproper office (Sections 28,29 and 30);

(b) that the person is entitled topresent it (Sections 32 and

40)

(c) that if it is a non-testamentarydocument and relates to. immovableproperty, it contains a description ofproperty sufficient to identify the sameand fulfils the requirements of Rules18 to 20:

(d) that if it is written in a languagenot commonly used in the Districtand not understood by the RegisteringOfficer it is accompanied by a truetranslation into a language commonlyused in the District and also by truecopy (Section 19);

(e) that if it contains a map or plan,it is accompanied by true copies ofsuch map or plan as required bySection 21(4);

(f) that it contains no unattested

interlineations, blanks, erasures oralterations, which in his opinionrequire to be attested as required bySection 20(1);

(g) that if the document is one otherthan a will it has been presentedwithin the time prescribed bySections 23 to 26;

(h) that it bears the date of itsexecution and does not bear a dateanterior to the date of purchase ofstamp papers and the document iswritten on a date subsequent to thedate of presentation.

i) that if the date is written in anydocument other a will presented forregistration after the death of thetestator according to both the Britishand the Indian calendars, these datestally; and

(j) that if the presentant is notpersonally known to the RegisteringOfficer, he is accompanied by suchidentifying witness with whosetestimony the Registering Officer maybe satisfied;

Provided that the registering officershall dispense with the execution ofcancellation deeds by executant andclaimant parties to the previouslyregistered deeds of conveyances onsale before him if the cancellationdeed is executed by a Civil Judgeor a Government Officer competentto execute Government ordersdeclaring the properties contained in


22

the previously registered conveyanceon sale to be Government orAssigned or Endowment lands orproperties not registerable by anyprovision of law.

(k)(i) The registrating officer shallensure at the time of presentationfor registration of cancellation deedsof previously registered deed ofconveyances on sale before him thatsuch cancellation deeds areexecuted by all the executant andclaimant parties to the previouslyregistered conveyance on sale andthat such cancellation deed isaccompanied by a declarationshowing mutual consent or orders ofa competent Civil or High Court orState or Central Government annullingthe transaction contained in thepreviously registered deed ofconveyance on sale;

Provided that the registering officershall dispense with the execution ofcancellation deeds by executant andclaimant parties to the previouslyregistered deeds of conveyances onsale before him if the cancellationdeed is executed by a Civil Judgeor a Government Officer competentto execute Government Ordersdeclaring the properties contained thepreviously registered conveyance onsale to be Government or Assignedor Endowment lands or propertiesnot registerable by any provision oflaw.

Note: See Govt. Memo Rc.No.G1/

10866/2006, dt. 14.03.2008.

(ii) Save in the manner provided forabove no cancellation deed of apreviously registered deed ofconveyance on sale before him shallbe accepted for presentation forregistration. (Ins. by Noti. No.R.R.1/2016, Pub. In A.P.Gaz. R.S.to Pt.II,Ext. No.18, dt.29-11-2006.)

In the light of the said Rule, when deedsof cancellation were executed,W.P.No.14007 of 2004 was filed before alearned single Judge of this Court challengingthe acceptance of deed of cancellation ofthe Gift Deed dated 02.08.2004 and thelearned single Judge following the decisionin PROPERTY ASSOCIATION OF BAPTISTCHURCHES VS. SUB REGISTRAR,JANGOAN(1) dismissed the writ petitionobserving that a party aggrieved by aregistered document of conveyance has tofile a suit seeking proper declaration. Thesame was confirmed by Judgment dated11.10.2004 passed in W.A.No.1486 of 2004.Thereafter, W.P.Nos.23005 and 23088 of2004 came up for consideration beforeanother learned single Judge, before whom,the cancellation deeds were challenged.The learned single Judge, having felt thatvarious points were not brought to the noticeof the earlier Division Bench, thought it fitto refer the matter to another Division Benchor if necessary to a Full Bench. Accordingly,in view of the decision of the earlier DivisionBench, the matter was referred to a FullBench. The Full Bench considered thefollowing points:

1. 2004 (1) ALT 174

92 LAW SUMMARY (Hyd.) 2017(3)

23

1. Whether a person can nullify thesale by executing and registering aCancellation Deed Whether aregistering officer, like DistrictRegistrar and/or Sub Registrarappointed by the State Government,is bound to refuse registration whena Cancellation Deed is presented

2. Whether a writ petition ismaintainable for invalidation of aCancellation Deed or for cancellationof an instrument which purports tonullify a Sale Deed Both the pointswere held against the petitioners bya majority of the Judges of the FullBench and the writ petitions weredismissed in Yanala Malleshwari vs.Smt. Ananthula Sayamma . It washeld that the registering authoritycannot reject the registration whena deed of cancellation was presentedand when such an action ischallenged, the writ petition is nota proper remedy.

In view of the above decision of the FullBench, Rule 26 was amended bysubstituting clause (k) as follows:

(k) That the Cancellation Deed of thepreviously registered deed of conveyanceon sale of immovable property is executedby both the executing and the claimingparties thereof unless such CancellationDeed is executed under the orders of acompetent Court or under Rule 243.

(Vide G.O.Ms.No.121, Rev.(Regn.I), Dept.dt.1-6-2016, w.e.f.2-6-2014) In view of thisamendment, the registering officer shall

ensure the presence of all the executantsand claimant parties to the previouslyregistered conveyance before registering thedeeds of cancellation. But even violatingthis procedure also, it appears that someregistering authorities registered certaindeeds of cancellation, which was challengedas aforesaid in some of the writ petitions.Though it is clear that no action of theofficials is valid in view of the violation ofrules, the point with regard to the remedystill remains. It necessitates theexamination of the scope of remedy in suchcases.

The very amendment of Rule 26(k) waschallenged before this Court in KaithaNarasimha v. State of Andhra Pradesh(W.P.No.3744 of 2007) on the ground thatthe amendment was contrary to theJudgment of Full Bench of this Court inYanala Malleshwaris case (supra), but aDivision Bench of this Court by order dated13.03.2007 upheld the said amendment.

A learned single Judge of this Court inEDIGA CHANDRASEKAR GOWD VS.STATE OF ANDHRA PRADESH(3) , whileconsidering the action of the registeringauthority in registering cancellation deedcancelling the Agreement of Sale cumirrevocable General Power of Attorney, aftertracing out the history relating to amendmentto Rule 26(i)(k)(i) and considering the caseof Supreme Court in THOTA GANGA LAXMIVS. GOVERNMENT OF ANDHRAPRADESH(4), allowed the writ petitionimplying that a writ petition was maintainable.

3. 2017 (4) ALD 124. (2010) 15 SCC 207 : 2012 (1) ALD 90(SC)


24

The violation of procedure by the registeringauthority after amendment of Rule 26 maynot involve any disputed questions of factso far as the procedure is concerned butsuch a deed is a voidable deed. A partyaffected by such registration can keep quietor challenge the same. When he/shechallenges, the question of remedy arisesfor consideration.

An identical point which arose before a FullBench of this Court in the above case ofYanala Malleswari, came up for considerationbefore a Full Bench of Madras High Courtin M/S.LATIF ESTATE LINE INDIA LIMITEDVS. MRS.HADEEJA AMMAL(5) , whereinthe validity of registration of deed ofcancellation after registering a sale deedcame up for consideration. Initially whenthe matter came up before a learned singleJudge, the learned single Judge held asfollows.

"i) Challenging registration of aunilaterally executed cancellation ofa sale deed, a writ petition ismaintainable under Article 226 of theConstitution of India.

ii) A cancellation of a sale deedexecuted by mutual consent by allparties to the sale deed, if presentedfor registration, Registering Officer isbound to register the same if theother provisions like Section 32-A ofthe Registration Act are compliedwith.

iii) The Registering Officer is obligedlegally to reject and to refuse to

register a unilaterally executed Deedof Cancellation of a sale deed withoutthe knowledge and consent of otherparties to the sale deed. On the basisof the aforesaid conclusion, learnedsingle Judge held that thecancellation deed was executedunilaterally by the secondrespondent/appellant without theknowledge and consent of the writpetitioner and without complying therequirements of Section 32-A of theRegistration Act. Hence, the writpetition was allowed and theregistration of Cancellation Deed wasquashed."

The matter was ultimately referred to a FullBench and the Full Bench formulated thefollowing points:

(i) Whether cancellation of aregistration of a registered sale deedof a immovable property havingvaluation of more than one hundredrupees can be registered either underSections 17 or 18 or any otherprovision of the Registration Act

(ii) Whether for such cancellation ofa registered sale deed, signature ofperson claiming under the documentfor sale of property is required to signthe document, if no such stipulationis made under the Act and

(iii) Whether the decisions of thesingle Judge dated 10.02.2009 madein W.P.No.8567 of 2008 and theDivision Bench dated 01.04.2009made in W.A.No.194 of 2009 amount5. AIR 2011 Mad 16


25

to amending the provisions of theRegistration Act and the Rulesframed thereunder, by inserting aclause for extinguishing right, title orinterest of a person on an immovableproperty of value more than Rs.100/- in a manner not prescribed underthe Rules

As could be seen above, though the learnedsingle Judge decided a point with regardto the maintainability of the writ petition,the same was not considered by the FullBench. The Full Bench of the Madras HighCourt considered the Full Bench decisionof this Court in Yanala Malleshwari. Afterconsidering the four Judge decision of thePrivy Council in MD.IHTISHAN ALI VS.JAMNA PRASAD(6) , that of the decisionin MICHHU KUANR VS. RAGHU JENA(7)and Section 31 of the Specific Relief Act,which came up for interpretation inMUPPUDATHI PILLAI VS.KRISHNASWAMI PILLAI (8) , the Full Benchultimately held as follows:

59. After giving our anxious considerationon the questions raised in the instant case,we come to the following conclusion:-

(i) A deed of cancellation of a saleunilaterally executed by the transferordoes not create, assign, limit orextinguish any right, title or interestin the property and is of no effect.Such a document does not createany encumbrance in the propertyalready transferred. Hence such a

deed of cancellation cannot beaccepted for registration.

(ii) Once title to the property is vestedin the transferee by the sale of theproperty, it cannot be divested untothe transferor by execution andregistration of a deed of cancellationeven with the consent of the parties.The proper course would be to re-convey the property by a deed ofconveyance by the transferee in favourof the transferor.

(iii) Where a transfer is effected byway of sale with the condition thattitle will pass on payment ofconsideration, and such intention isclear from the recital in the deed,then such instrument or sale can becancelled by a deed of cancellationwith the consent of both the partieson the ground of non-payment ofconsideration. The reason is that insuch a sale deed, admittedly, thetitle remained with the transferor.

(iv) In other cases, a complete andabsolute sale can be cancelled atthe instance of the transferor onlyby taking recourse to the Civil Courtby obtaining a decree of cancellationof sale deed on the ground inter aliaof fraud or any other valid reasons.

A perusal of the above conclusions of theFull Bench of the Madras High Court showsthat a complete and absolute sale deedcan be cancelled at the instance of thetransferor only by taking recourse to theCivil Court by obtaining a decree of

6. AIR 1922 PC 567. AIR 1961 Ori 198. AIR 1960 Mad 1 (FB)


26

cancellation of sale deed on the ground offraud or any other valid reasons. It doesnot lay down any principle with regard tomaintainability of the writ petition afterexecution of a deed of cancellation of anearlier deed of conveyance by the registeringauthority.

In view of the above discussion, it is heldthat the unilateral execution of a documentof deed of cancellation, cancelling the earlierregistered document and registration of thesame by the registering authority prior tothe amendment can validly be done by theRegistering Authority and the aggrieved partycan challenge such action, whereas afterthe amendment the Registering Authoritycannot register a document of cancellationwithout following the amended Rule 26(k)of the Rules.

Regarding the remedy of the partieschallenging the deeds of cancellation, it issubmitted by the learned counsel for thepetitioners that the writ petition ismaintainable and drew support from thedecision in Ediga Chandrasekar Gowd'scase (supra). In the said decision, therewas no discussion with regard tomaintainability of the writ petition, andmerely because a writ petition was allowedby this Court, it cannot be concluded thatthe writ petition was maintainable as amatter of point of law in all cases. Thelearned counsel for the petitioners placedreliance on the decisions of this CourtA.B.C.INDIA LIMITED VS. THEA.P.INDUSTRIAL INFRASTRUCTURECORPORATION LIMITED(9) , THOTAGANGA LAXMI, FAZALULLAH KHAN VS.

STATE OF ANDHRA PRADESH (10) ANDSATYA PAL ANAND VS. STATE OFMADHYA PRADESH(11).

In A.B.C.India Limiteds case (supra), thecancellation of sale deed validly executedby the A.P.Industrial InfrastructureCorporation Limited came up forconsideration and a learned single Judgeof this Court, who is a party to the majorityJudgment of the Full Bench, held that theAPIIC has no power or jurisdiction to cancelthe allotment which has the effect of nullifyingthe sale deed and accordingly set asidethe cancellation of allotment. In those cases,the petitioners were allotted industrial plotsby the APIIC and sale deeds were alsoexecuted transferring title deeds inimmovable property. The allotment wascancelled after five years on the ground thatthe conditions of sale and agreements ofsale were not adhered to. The learned singleJudge dealt with the issue with regard tomaintainability of writ petition. He consideredthe effect of introducing Rule 26(k) of theRules. He ultimately held that the questioninvolved in the cases was not in relationto a contract, but in relation to the authority,power and jurisdiction of APIIC as vendorto cancel the sale, and accordingly thepoint raised by the learned counsel for APIICthat since the writ petitions involved disputesarising out of private contract entered intobetween the public authority and privateparties and hence was not amenable tojudicial review was negatived. He held thatthe writ petitions were maintainable andaccordingly allowed the same.

9. 2010 (6) ALT 142

10. AIR 2012 AP 16311. (2015) 15 SCC 263


27

In Thota Ganga Laxmi's case (supra), theSupreme Court considered the Full Benchdecision of this Court in Yanala Malleshwaribut held that in cases of registration ofdeeds of cancellation by the registeringauthority, directing the aggrieved party togo to Civil Court was held to be not correct.The observations of the Supreme Court areas follows:

4. In our opinion, there was no needfor the appellants to approach thecivil Court as the said cancellationdeed dated 04.08.2005 as well asregistration of the same was whollyvoid and non est and can be ignoredaltogether. For illustration, if 'A'transfers a piece of land to 'B' bya registered sale deed, then, if it isnot disputed that 'A' had the title tothe land, that title passes to 'B' onthe registration of the sale deed(retrospectively from the date ofexecution of the same) and 'B' thenbecomes the owner of the land. If'A' wants to subsequently get thesale deed cancelled, he has to filea civil suit for cancellation or elsehe can request 'B' to sell the landback to 'A' but by no stretch ofimagination, can a cancellation deedbe executed or registered. This isunheard of in law.

The Supreme Court referred to theunamended Rule 26(i) (k) in the saiddecision.

A learned single Judge of this Court inFazalullah Khans case (supra), consideredthe effect of registering a deed of cancellation

cancelling the deed of gift earlier executedand held that Rule 26(k) equally appliesto the gift deeds also. While coming to theconclusion, the learned single Judge reliedupon by the decision of the Supreme Courtin Thota Ganga Laxmis case (supra), whichwas unreported by then. When his attentionwas drawn to the decision of VALLURIANURADHA VS. SUB REGISTRAR,SAROORNAGAR, RANGA REDDYDISTRICT(12) , he held that said decisionis no longer good law in view of the decisionof the Supreme Court in Thota GangaLaxmis case (supra). The point involved inthe said decision was only the applicationof Rule 26(k) to cancellation of gift deeds.

In Satya Pal Anand's case (supra), a twoJudge Bench of the Supreme Courtconsidered three questions and in view ofthe disagreement, the matter was referredto a Larger Bench and the Larger Benchdecision is available in SATYA PAL ANANDVS. STATE OF MADHYA PRADESH(13). The said reference came up before thethree-Judge Bench of the Supreme Courtbecause one of the two Judges (Dipak Misra,J) in the earlier decision held that the aboveAppeal challenging the order passed by theSub Registrar was rightly dismissed by theHigh Court, whereas the other learned Judge(V.Gopala Gowda, J) allowed the Appealon the ground that the Registering Authorityhas no power to register the Extinguishmentdeed presented by the respondent Societyand it was void ab initio. Consequently, thesubsequent deeds in respect of the propertyregistered by the Sub Registrar were alsoheld without authority and void ab initio.

12. 2006 (2) ALD 37113. (2016) 10 SCC 767


28

The facts in the above case are that oneplot was allotted to the mother of theappellant by a Cooperative Society whichexecuted a registered deed of sale on22.03.1962. She died on 12.06.1988. Afterher death, the Society unilaterally executeda deed of Extinguishment on 09.08.2001cancelling the said allotment of plot in favourof the mother of the appellant due to violationof bye-laws of the Society in not raisingany construction in the plot so allotted withintime. On the basis of the Extinguishmentdeed, the Society executed another deedof registration in favour of the third partyin respect of the same plot. However, thematter was later on compromised amongthe parties by exchanging money to theextent of loss. In spite of the same, theappellant raised a dispute under Section64 of the Madhya Pradesh CooperativeSocieties Act before the Deputy Registrarchallenging the action of unilaterallyregistering the Extinguishment deed andallotting the plot in favour of the third partyand sought a declaration that he continuesto be the owner of the plot allotted earlierby the Society to his mother having inheritedthe same. During the pendency of the saidwrit petition, the Society permitted transferof plot in favour of two other parties byRegistered deed dated 11.07.2006(obviously by the third party in whose favourthe deed of registration was executed bythe Society and whose title was acceptedby the appellant by receiving consideration).The purchasers issued a notice on12.07.2007 asking to refund theconsideration amount accepted by himpursuant to the compromise dated06.07.2004 but the appellant did not paythe amount and pursued multiple

proceedings. The Sub Registrar rejectedthe application of the applicant. When thedispute was pending before the DeputyRegistrar of Cooperative Societies, he movedan application before the Sub Registrar(Registration) asking to cancel theregistration of Extinguishment deed dated09.08.2001 and the subsequent two deedsof sale dated 21.04.2004 and 11.07.2006respectively, by an application dated04.02.2008. The Sub Registrar (Registration)rejected the said application on 28.06.2008mainly holding that a dispute was pendingbetween the parties with regard to the samesubject matter before the Deputy Registrarof Cooperative Societies and he had nojurisdiction to cancel the registration of theregistered document in question. He filedan appeal against the said order to theInspector General (Registration) underSection 69 of the Registration Act and healso dismissed the Appeal by order dated19.09.2008. The writ petition filed by himwas also dismissed by the Division Benchof the High Court since the dispute waspending before the Deputy Registrar ofCooperative Societies. The same waschallenged before the Supreme Court. Whenthe Appeal initially came up before a two-Judge Bench, as stated above, the learnedtwo Judges differed and the matter cameup before a three-Judge Bench. The three-Judge Bench noticed that one of the twoJudges did not agree with the principle statedin Thota Ganga Laxmis case (supra) in theabsence of any specific rule in that behalf.The other learned Judge constituting thetwo-Judge Bench following Thota GangaLaxmis case (supra), placing reliance onSection 31 of the Specific Relief Act andin view of the period of limitation contained


29

in Article 59 of the Limitation Act, 1953,which requires cancellation of any documentwithin three years, held that the unilateralcancellation was impermissible in law. Healso placed reliance on Article 300-A of theConstitution of India. He also observed thatmerely because Extinguishment deed canbe challenged by approaching a civil Court,it would not denude the appellant of therelief as sought in the writ petition quaExtinguishment deed dated 09.08.2001,which was void ab initio. He also held thatthe compromise executed by the appellantcannot stand in his way in getting relief.After hearing the rival submissions and viewsof the learned two Judges, the SupremeCourt framed the following questions in thefact situation of that case, which are asfollows:

23.1. (a) Whether in the fact situationof the present case, the High Courtwas justified in dismissing the writpetition 23.2. (b) Whether the HighCourt in exercise of writ jurisdictionunder Article 226 of the Constitutionof India is duty-bound to declare theregistered deeds (between the privateparties) as void ab initio and to cancelthe same, especially when theaggrieved party (appellant) hasalready resorted to an alternativeefficacious remedy under Section 64of the 1960 Act before the competentforum whilst questioning the actionof the Society in cancelling theallotment of the subject plot in favourof the original allottee and unilateralexecution of an extinguishment deedfor that purpose 23.3. (c) Even if theHigh Court is endowed with a wide

power including to examine thevalidity of the registeredextinguishment deed and thesubsequent registered deeds, shouldit foreclose the issues which involvedisputed questions of fact andgermane for adjudication by thecompetent forum under the 1960 Act23.4. (d) Whether the Sub-Registrar(Registration) has authority to cancelthe registration of any documentincluding an extinguishment deedafter it is registered Similarly, whetherthe Inspector General (Registration)can cancel the registration ofextinguishment deed in exercise ofpowers under Section 69 of the 1908Act 23.5. (e) Whether the Sub-Registrar (Registration) had noauthority to register theextinguishment deed dated 9-8-2001,unilaterally presented by therespondent Society for registration23.6. (f) Whether the dictum in ThotaGanga Laxmi [Thota Ganga Laxmiv. State of A.P., (2010) 15 SCC 207: (2013) 1 SCC (Civ) 1063] is withreference to the express statutoryRule framed by the State of AndhraPradesh or is a general propositionof law applicable even to the Stateof Madhya Pradesh, in absence ofan express provision in that regard

While deciding the issues (a) to (c), thethree Judges agreed with the view takenby Justice Dipak Misra with the followingobservations in para 25.

25. It is a well-established positionthat the remedy of writ under Article


30

226 of the Constitution of India isextraordinary and discretionary. Inexercise of writ jurisdiction, the HighCourt cannot be oblivious to theconduct of the party invoking thatremedy. The fact that the party mayhave several remedies for the samecause of action, he must elect hisremedy and cannot be permitted toindulge in multiplicity of actions. Theexercise of discretion to issue a writis a matter of granting equitable relief.It is a remedy in equity. In the presentcase, the High Court declined tointerfere at the instance of theappellant having noticed the aboveclinching facts. No fault can be foundwith the approach of the High Courtin refusing to exercise its writjurisdiction because of the conductof the appellant in pursuing multipleproceedings for the same relief andalso because the appellant had analternative and efficacious statutoryremedy to which he has alreadyresorted to. This view of the HighCourt has found favour with DipakMisra, J. We respectfully agree withthat view.

In support of its reasoning to disagree withthe view taken by the other learned Judgeconstituting two-Judge Bench, the SupremeCourt observed as follows:

29. In our considered opinion, it wouldbe unnecessary if not inappropriateto examine any other contention atthe instance of this appellant as weagree with the view taken by theHigh Court in summarily dismissing

the writ petition with liberty to theappellant to pursue statutory remedy.At best, further observation orclarification would suffice to the effectthat the competent forum beforewhom the dispute has been filed bythe appellant shall consider allcontentions available to the parties,uninfluenced by the factum ofregistered extinguishment deed. Inthat, if the competent forum was tohold that it was open to the Societyto cancel the allotment andmembership of the memberconcerned and thereafter to allot thesame plot to another person enrolledas a member of the Society, no otherissue would arise for consideration.On the other hand, if the competentforum was to answer the relevantfact in favour of the appellant, onlythen the argument of the effect ofunilateral registration of theextinguishment deed followed bycompromise deed voluntarilyexecuted by the appellant maybecome available to the Society andto the subsequent purchasers/allottees of the subject plot. At theirinstance, those issues can beexamined on the basis of settledlegal position. Neither the observationnor the opinion recorded by one ofthe dissenting Judges of this Courtneed any further dissection nor wouldit be appropriate to enlarge the scopeof the proceedings before this Courton those aspects. This wouldsubserve the twin requirements.Firstly, to avoid an exposition onmatters and questions which do not


31

arise for our consideration in the factsituation of the present case at thisstage; and secondly, also provide anopportunity to the parties to pursueall contentions and other remediesas may be permissible in law.

30. The exposition of the ConstitutionBench of this Court in S. PartapSingh [S. Partap Singh v. State ofPunjab, AIR 1964 SC 72] advertedto in the dissenting opinion would beattracted in cases where the StateAuthority acts in bad faith or corruptmotives. Merely because someirregularity has been committed inregistration of extinguishment deedunilaterally presented by the Societyfor registration or in respect of thesubsequent deeds registered at theinstance of third party without noticeto the appellant, that, by itself, willnot result in registration of thosedocuments due to corrupt motivesof the State Authority. More so, inthe present case, the appellant havingentered into a compromise deed withthe Society and third party(subsequent allottees) in respect ofthe subject plot, it is doubtful whetherit is open to the appellant to questionthe act of unilateral execution andregistration of the statedextinguishment deed being irregularmuch less void and nullity.Indisputably, the respondent Societyis a limited cooperative housingsociety and is governed by its bye-laws. According to the counsel forthe Society, the member is obligedto erect a house on the plot allotted

to him within specified time, failingwhich must suffer the consequenceincluding of cancellation of allotmentof plot and removal of hismembership. At the time of allotment,the member executes an agreementwhereunder he/she undertakes toabide by the conditions specified forerecting a house on the plot allottedto him/her in the manner prescribedtherein. Whether the Society isjustified in proceeding against thedefaulting member by cancelling theallotment of plot as well asmembership, is an issue falling withinthe purview of the business of theSociety. The member is bound bythe stipulation contained in theagreement executed by him/her andin particular the bye-laws of theSociety. Any action by the Societyfor breach thereof is just or otherwisecan be questioned before thestatutory forum under the 1960 Act.Those are matters which can andmust be answered in the proceedingsresorted to by the appellant beforethe statutory forum. (emphasissupplied)

31. The aforementioned reporteddecision has noted the subtledistinction between ultra vires act ofthe statutory authority and a caseof a simple infraction of the proceduralRule. The question, whether theSociety was competent to unilaterallycancel the allotment of a plot givento its member and to cancel themembership of such member due todefault committed by the member,


32

is within the purview of the businessof the Society. Any cause of actionin that regard must be adjudicatedby the procedure prescribed in thatbehalf. It is not open to presume thatthe Society had no authority in lawto take a decision in that behalf. Theright of the appellant qua the plot ofland would obviously be subject tothe final outcome of such action. Theappellant being the legalrepresentative of the original allottee,cannot claim any right higher thanthat of his predecessor qua theHousing Society, which is the finalauthority to decide on the issue ofcontinuation of membership of itsmember. The right of the member toremain in occupation of the plotallotted by the Society would beentirely dependent on that decision.

The Supreme Court while answering (d) to(f) examined the provisions of theRegistration Act in the following terms:

34. The role of the Sub-Registrar(Registration) stands discharged,once the document is registered (seeRaja Mohammad Amir Ahmad Khan[State of U.P. v. Raja MohammadAmir Ahmad Khan, AIR 1961 SC 787]). Section 17 of the 1908 Act dealswith documents which requirecompulsory registration.Extinguishment deed is one suchdocument referred to in Section17(1)(b). Section 18 of the same Actdeals with documents, registrationwhereof is optional. Section 20 of theAct deals with documents containing

interlineations, blanks, erasures oralterations. Section 21 provides fordescription of property and maps orplans and Section 22 deals with thedescription of houses and land byreference to government maps andsurveys. There is no express provisionin the 1908 Act which empowers theRegistrar to recall such registration.The fact whether the document wasproperly presented for registrationcannot be reopened by the Registrarafter its registration. The power tocancel the registration is a substantivematter. In absence of any expressprovision in that behalf, it is not opento assume that the Sub-Registrar(Registration) would be competentto cancel the registration of thedocuments in question. Similarly, thepower of the Inspector General islimited to do superintendence ofRegistration Offices and make rulesin that behalf. Even the InspectorGeneral has no power to cancel theregistration of any document whichhas already been registered.

36. If the document is required tobe compulsorily registered, but whiledoing so some irregularity creeps in,that, by itself, cannot result in afraudulent action of the StateAuthority. Non-presence of the otherparty to the extinguishment deedpresented by the Society before theRegistering Officer by no standardcan be said to be a fraudulent actionper se. The fact whether that wasdone deceitfully to cause loss andharm to the other party to the deed,


33

is a question of fact which must bepleaded and proved by the partymaking such allegation. That factcannot be presumed. Suffice it toobserve that since the provisions inthe 1908 Act enables the RegisteringOfficer to register the documentspresented for registration by one partyand execution thereof to be admittedor denied by the other partythereafter, it is unfathomable as tohow the registration of the documentby following procedure specified inthe 1908 Act can be said to befraudulent. As aforementioned, someirregularity in the procedurecommitted during the registrationprocess would not lead to afraudulent execution and registrationof the document, but a case of mereirregularity. In either case, the partyaggrieved by such registration ofdocument is free to challenge itsvalidity before the civil court.(emphasis supplied)

Then the Supreme Court referred to the FullBench decision of this Court in YanalaMalleshwaris case (supra) in paragraph 40thereof. Approving the view of the MadrasHigh Court in PARK VIEW ENTERPRISESVS. STATE OF TAMIL NADU(14) , theSupreme Court in para 41 thereof held thatthe function of the Registering Officer ispurely administrative and not quasi judicial.Further, while referring to Thota GangaLaxmi, it was held that the decision cannothave universal application to all States (otherthan the State of Andhra Pradesh) and inthe absence of any such provision in the

State of Madhya Pradesh, it was held thatit cannot be labelled as fraudulent or nullityin law. The Supreme Court also held thatthe error of the Registering Officer can becalled an error of procedure and when itwas done in good faith, Section 87 of theRegistration Act protects such Act. Theobservations of the Supreme Court are asfollows:

43. No provision in the State ofMadhya Pradesh enactment or theRules framed under Section 69 ofthe 1908 Act has been brought toour notice which is similar to theprovision in Rule 26(k)(i) of the AndhraPradesh Registration Rules framedin exercise of power under Section69 of the 1908 Act. That being aprocedural matter must be expresslyprovided in the Act or the Rulesapplicable to the State concerned.In absence of such an expressprovision, the registration ofextinguishment deed in questioncannot be labelled as fraudulent ornullity in law. As aforesaid, there isnothing in Section 34 of the 1908Act which obligates appearance ofthe other party at the time ofpresentation of extinguishment deedfor registration, so as to declare thatsuch registration of document to benull and void. The error of theRegistering Officer, if any, must beregarded as error of procedure.Section 87 of the 1908 Act postulatesthat nothing done in good faith bythe Registering Officer pursuant tothe Act, shall be deemed invalidmerely by reason of any defect in14. AIR 1990 Mad 251


34

the procedure. In the present case,the subject extinguishment deed waspresented by the person dulyauthorised by the Society and wasregistered by the Registering Officer.Once the document is registered, itis not open to any Authority, underthe 1908 Act to cancel theregistration. The remedy of appealprovided under the 1908 Act, in PartXII, in particular Section 72, is limitedto the inaction or refusal by theRegistering Officer to register adocument. The power conferred onthe Registrar by virtue of Section 68cannot be invoked to cancel theregistration of documents alreadyregistered.

46. In our considered view, thedecision in Thota Ganga Laxmi [ThotaGanga Laxmi v. State of A.P., (2010)15 SCC 207 : (2013) 1 SCC (Civ)1063] was dealing with an expressprovision, as applicable to the Stateof Andhra Pradesh and in particularwith regard to the registration of anextinguishment deed. In absence ofsuch an express provision, in otherState legislations, the RegisteringOfficer would be governed by theprovisions in the 1908 Act. Going bythe said provisions, there is nothingto indicate that the Registering Officeris required to undertake a quasi-judicial enquiry regarding the veracityof the factual position stated in thedocument presented for registrationor its legality, if the tenor of thedocument suggests that it requiresto be registered. The validity of such

registered document can, indeed, beput in issue before a court ofcompetent jurisdiction.

The observations of the Supreme Court ashighlighted in paragraphs 30 and 31 runcontrary to the view taken by the SupremeCourt in Thota Ganga Laxmis case (supra)with regard to the procedural non-complianceand maintainability of a writ petition. Whatcan be deduced from the above decisionfor examining the issue relating tomaintainability of a writ petition is that theaction of the registering authority inregistering the document is onlyadministrative in nature and the case ofsimple infraction of the procedural rule hasto be distinguished from the ultra vires actof the statutory authority in the absenceof any remedy in the statute. In the absenceof any bad faith or corrupt motive, the partyaggrieved by such registration of documentcan challenge its validity before the civilCourt. This is made clear in the observationsmade in paragraph 36 of the aboveJudgment. It is also clear from the abovethat in view of the Rule position prevailingthen, the decision of the Full Bench of thisCourt in Yanala Malleshwaris case (supra)was upheld and found to be correct.

The Full Bench in Yanala Malleshwaris case(supra) specifically examined the point withregard to the maintainability of writ petitionfor invalidation of a cancellation deed or forcancellation of an instrument, which purportsto nullify the sale deed. The Full Benchexamined the distinction between privatelaw and public law and held that thoughthe registering authorities are statutoryauthorities, their functions may or may not


35

strictly come within public law. Thereafter,it examined the power of judicial review ofthis Court and observed as follows:

85. Judicial Review has its ownlimitations and all decisions of publicbodies are not amenable to this publiclaw power. Nor is it permissible fora reviewing Court to deal with matterswhich lack adjudicative dispositionby reason of prerogative nature of thepower exercised by the publicauthority or exclusive entrustment ofpowers to a specialised body of theState. As the legislative and executivewings are prohibited from usurpingthe judicial functions of the State,the judiciary is not expected todischarge legislative and executivefunctions. The exposition of theprinciples of judicial review by LordDiplock in Council of Civil ServiceUnions v. Minister for the Civil Service,((1985) AC 374), has attained theclassical status of law of judicialreview. While grouping the groundsof judicial review into three broadpoints, namely, illegality, irrationalityand impropriety, the noble Lordobserved:

For a decision to be susceptible tojudicial review the decision- makermust be empowered by public law(and not merely, as in arbitration, byagreement between private parties)to make decisions that, if validlymade, will lead to administrativeaction or abstention from action byan authority endowed by law withexecutive powers, which have one or

other of the consequences mentionedin the preceding paragraph. Theultimate source of the decision-making power is nearly always now-a-days a statute or subordinatelegislation made under the statute;but in the absence of any statuteregulating the subject matter of thedecision the source of the decision-making power may still be thecommon law itself, i.e., that part ofthe common law that is given bylawyers the label of 'the prerogative'.

86. In a recent Judgment in Stateof U.P. v. Johri Mal, ((2004) 4 SCC714: 2014 AIR SCW 3888 (para 28)),the Supreme Court of India reiteratedthe scope and limitations of judicialreview in the following terms:

28. The scope and extent of powerof the judicial review of the High Courtcontained in Article 226 of theConstitution of India would vary fromcase to case, the nature of the order,the relevant statute as also the otherrelevant factors including the natureof power exercised by the publicauthorities, namely, whether thepower is statutory, quasi- judicial oradministrative. The power of judicialreview is not intended to assume asupervisory role or don the robes ofthe omnipresent. The power is notintended either to review governanceunder the rule of law nor do the courtsstep into the areas exclusivelyreserved by the suprema lex to theother organs of the State. Decisionsand actions which do not have


36

adjudicative disposition may notstrictly fall for consideration beforea judicial review court. The limitedscope of judicial review, succinctlyput, is:

(i) Courts, while exercising the powerof judicial review, do not sit in appealover the decisions of administrativebodies.

(ii) A petition for a judicial review would lieonly on certain well-defined grounds.

(iii) An order passed by an administrativeauthority exercising discretion vested in it,cannot be interfered in judicial review unlessit is shown that exercise of discretion itselfis perverse or illegal.

(iv) A mere wrong decision without anythingmore is not enough to attract the powerof judicial review; the supervisory jurisdictionconferred on a court is limited to seeingthat the Tribunal functions within the limitsof its authority and that its decisions donot occasion miscarriage of justice.

(v) The courts cannot be called upon toundertake the government duties andfunctions. The court shall not ordinarilyinterfere with a policy decision of the State.Social and economic belief of a judge shouldnot be invoked as a substitute for thejudgment of the legislative bodies. (See IraMunn v. State of Illinois [94 US 113 : 24L Ed 77 (1876)]).

87. Apart from the limitations pointed outby the Supreme Court, the power of judicialreview is not available when there is an

effective alternative remedy to the aggrievedperson. When granting redressal involvesadjudication of disputed questions of facts,which require adducing of evidence by theparties, then also ordinarily an applicationfor a judicial review is not accepted. SeeWhirlpool Corporation v. Registrar of TradeMarks, (AIR 1999 SC 2). There is justificationfor the principle. Clive Lewis in JudicialRemedies in Public Law (first edition 1992,Sweet and Maxwell, pp.229 and 230),explained the rationale for the principle asunder.

The rationale for the exhaustion of remediesprinciple is relevant to the scope of thatprinciple. A twofold justification has beenput forward. First, that where Parliamenthas provided for a statutory appealsprocedure, it is not for the Courts to usurpthe functions of the appellate body. Theprinciple applies equally to bodies notcreated by statute which have their ownappellate system. Secondly, the publicinterest dictates that judicial review shouldbe exercised speedily, and to that end itis necessary to limit the number of casesin which judicial review is used. To thesereasons can be added the additionalexpertise that the appellate bodies possess.In tax cases, for example, the appellatebody, the General or SpecialCommissioners, have wide experience ofthe complex and detailed tax legislation.In employment cases, for example, thesystem of Industrial and Employment AppealTribunals may be better equipped to dealwith industrial issues than the High Court.

In the instant cases, there is an alternativeremedy of approaching the civil court under


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Section 31 of the Specific Relief Act andit cannot be said that such relief is not aneffective remedy. But the learned SeniorCounsel, Sri V.L.N.G.K.Murthy pointed outthat a party aggrieved by an irregular actof a statutory authority cannot be drivento the remedy of civil Court and this Courtcan exercise its power of judicial review andset aside such act of registration of a deedof cancellation by registering authority. Thedecision of the three-Judge Bench of theSupreme Court in Satya Pal Anands case(supra) and the observations made thereinare sufficient to answer this point.

The facts in these cases are not advertedto as the writ petitions are considered anddisposed on the point of law only. Even itis assumed that the action of the registeringauthority was accentuated by fraud, it hasto be proved by specific averments and nosuch averment is made in these writ petitionsand fraud cannot be assumed from a mereregistration of a document by the registeringauthority as observed by the Supreme Court.

At the cost of repetition, it is held that theact of the Registering Authority is only anadministrative act and it has no optionexcept to register a document, which wasvalidly presented. The document may bevalid at the time of presentation but isrequired to comply with the Rules at thetime of registration and if he violated Rule26(k) of the Rules, it can be definitely saidthat he committed procedural irregularity.It is well established rule of administrativelaw that an authority, which is vested withpower, may exercise it rightly or wrongly,but this Court while exercising the powerof judicial review, subject to its limitations,

would interfere with such actions and oneof such limitations for exercising judicialreview is availability of alternative remedyand the discharge of public law duty. Merelybecause the respondent is a State underArticle 12, this Court cannot interfere asheld by the Supreme Court in JOSHITECHNOLOGIES INTERNATIONAL INC V.UNION OF INDIA(15). Thus, in order toexercise jurisdiction by this Court, the actionof the statutory authorities must be withoutany alternative authority and in dischargeof public law duty. Both of these are absentin the case of execution of deeds ofcancellation as no public law duty is involvedand Section 31 of the Specific Relief Actgives the relief. Merely because ThotaGanga Laxmis case (supra) reverses theorder of this Court dismissing the writ petitionrelating to cancellation of registration ofcancellation of sale deed, it does not followthat the writ petition is maintainable in viewof the observations made by three-JudgeBench of Supreme Court in Satya PalAnands case (supra).

All these writ petitions are accordinglydismissed holding that the writ petitions arenot maintainable. Consequently,miscellaneous petitions, if any pending, shallstand closed.

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38


2017(3) L.S. 108


ANDHRA PRADESH

Present:The Hon’ble Mr.JusticeA. Rajasheker Reddy

Marishetty PedaGangaram ..Petitioner

Vs.Chukka Hanumandlu& Anr., ..Respondents

CIVIL PROCEDURE CODE, Secs.10 & 151 and Order XIII Rule 9 - Whetheran interim order directing stay of allfurther proceedings passed by appellatecourt in appeal or by revisional courtin revision, operates as stay inconsidering the interlocutoryapplication filed in the trial court orbars only from proceeding with the trialof the suit?

Petitioners filed an IA seekingreturn of original registered sale deedsfiled by them to avail bank loans – Trialcourt dismissed IA on the ground thatHigh Court had granted stay of allfurther proceedings of suit, till disposalof appeal.

Held – Section 10 of CPCprojects only stay of trial of suit in whichmatter in issue is also directly andsubstantially in issue in a previouslyinstituted suit between same parties –

This provision does not prevent or barsthe court from passing incidental ordersrequired to meet the ends of justice –Any incidental orders not affecting trialof the suit nor decides rights of partiesconclusively can be passed – Trial courthas not exercised its jurisdictionproperly – Petitioners are permitted totake original registered sale deeds filedinto courts by substituting with thecertified copies with an undertaking toproduce same as when required by thecourt – Civil Revision Petition is allowed.

Cases Referred:1. AIR 1980 KERALA 1612. (1998) 5 SCC 69

Mr.E.V.V. S.Ravi Kumar, Advocate for thePetitioner.

C O M M O N O R D E R

These civil revision petitions raise interestingquestion of law. The point that would arisefor consideration is whether an interim orderdirecting stay of all further proceedingspassed by the appellate Court in appealor by the revisional Court in revision,operates as stay in considering theinterlocutory application filed in the trial Courtor bars only from proceeding with the trialof the suit.

2. The petitioners in these revision petitionsare plaintiffs in suit OS No.108 of 2014 (oldOS No.49 of 2003). The petitioners filed IANos.56, 57, 58, 59, 60 & 61 of 2017,respectively, in suit OS No.108 of 2014,under Order 13, Rule 9, r/w. Section 151CRP.No.2219/17 etc., Date:14-7-2017

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Marishetty Peda Gangaram Vs. Chukka Hanumandlu & Anr., 109CPC seeking return of original registeredsale deeds filed by them to avail bank loans.The trial Court by the impugned orders,dismissed the interlocutory applications onthe ground that this Court in CRP No.359of 2008, dated 08-02-2008 allowed IA No.45of 2006 filed by the petitioners herein, inthe instant suit OS No.49 of 2003, grantedstay of all further proceedings of the suit,till disposal of the appeal being AS No.62of 2004. Hence these civil revision petitions.

3. Sri E.V.V.S Ravi Kumar, learned counselfor the petitioners strenuously contendedthat the order of stay of suit passed in anapplication filed under Section 10 of CPCoperates only in respect of further trial ofthe suit and there is no bar to considerthe interlocutory applications to meet theends of justice. In support of his contention,learned counsel placed reliance on adecision rendered by Kerala High Court inV.R. BALAKRISHNAN NADAR vs.R.VELAYUDHAN NADAR (1). Though noticeis served, none appeared for therespondents.

4. The trial Court dismissed the interlocutoryapplications purportedly on the ground thatpassing any orders thereon would amountto conducting proceedings of the suit, whichis stayed by this Court in CRP No.359 of2008. This Court granted stay in the saidrevision petition at the instance of thepetitioners herein in the present suit OSNo.108 of 2014 (Old OS No.49 of 2003)having persuaded by the fact that suit OSNo.26 of 1997, which was filed for declarationof title and injunction, the suit propertytherein and the suit property in the present

suit being same, observed that the presentsuit OS No.108 of 2014 (Old OS No.49 of2003) will have to await the decision inappeal AS No.62 of 2004 pending on thefile of this Court, which was filed againstthe judgment and decree in suit OS No.26of 1997.

5. It is trite to reproduce Section 10 CPC,which reads as under:-

No Court shall proceed with the trialof any suit in which the matter inissue is also directly and substantiallyin issue in a previously instituted suitbetween the same parties, orbetween parties under whom they orany of them claim litigating under thesame title where such suit is pendingin the same or any other Court inIndia having jurisdiction to grant therelief claimed, or in any Court beyondthe limits of India established orcontinued by the Central Governmentand having like jurisdiction, or beforethe Supreme Court.

Explanation:-- The pendency of a suit ina foreign Court does not preclude the Courtsin India from trying a suit founded on thesame cause of action."

6. From a plain reading of the aboveprovision, it is understood that Section 10requires that a suit must be stayed if thematter directly and substantially in issuein it is also directly and substantially inissue in a previous suit that is pending.The criterion for deciding whether thesubsequent suit be stayed or not is whetherthere is identity of the matters directly and1. AIR 1980 KERALA 161

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110 LAW SUMMARY (Hyd.) 2017(3)substantially in issue in the two suits, ifthere is, the subsequent suit must be stayedand if there is not, it will not be stayed.The object of this provision is to preventtwo Courts of concurrent jurisdiction fromsimultaneously trying two parallel suits inrespect of the same matter in issue. It isto obviate conflict of decisions of twocontradictory decrees being passed inrespect of the same subject-matter betweenthe same parties. The words of Section 10are mandatory and the test to determinewhether the matter in issue in the secondsuit is also directly and substantially inissue in the previously instituted suit andwhether if the first suit is determined thematters raised in the second suit and hitby res-judicata by reason of the decisionin the prior suit. As a matter of course,it is not necessary that the subject-matterand cause of action should be the same.But what is essential is that there mustbe substantial identity between the mattersin dispute and parties in the earlier and latersuits.

7. In this case the petitioners are seekingreturn of the original registered sale deedsfiled by them from the custody of the Courtto avail bank loans. The relief sought isincidental relief and has no relation toconduct of trial of the suit. What Section10 CPC projects is only stay of trial of suitin which the matter in issue is also directlyand substantially in issue in a previouslyinstituted suit between the same parties.The provision does not prevent or bars theCourt from passing incidental orders requiredto meet the ends of justice. In other words,any incidental orders, not affecting the trialof the suit nor decides the rights of the

parties conclusively can be passed. TheKerala High Court in V.R. BalakrishnanNadars case (1 supra), relying on a DivisionBench decision of the Bombay High Courtin Senaji Kapurchand vs. PannajiDevichands case (AIR 1922 Bombay 276)upheld the order of the trial Court in allowingthe petitions to amend the plaint and forappointment of a Receiver, dehors stay ofthe suit under Section 10 CPC.

8. The Supreme Court in INDIAN BANK vs.MAHARASTHRA STATE CO-OPERATIVEMARKETING FEDERATION LTD(2) , whileconsidering the scope and limits of Section10 CPC held as under:-

Section 10 of the Code prohibits the courtfrom proceeding with the trial of any suitin which the matter in issue is also directlyand substantially in issue in a previouslyinstituted suit provided other conditionsmentioned in the section are also satisfied.The word 'trial' is no doubt of a very wideimport as pointed out by the High Court.In legal parlance it means a judicialexamination and determination of the issuein civil or criminal court by a competentTribunal. According to WebsterComprehensive Dictionary, InternationalEdition, it means the examination, beforea tribunal having assigned jurisdiction, ofthe facts or law involved in an issue in orderto determine that issue. According toStroud's Judicial Dictionary (5th Edition), a'trial' is the conclusion, by a competenttribunal, of question in issue in legalproceedings, whether civil or criminal. Thusin its widest sense it would include all theproceedings right from the stage of

2. (1998) 5 SCC 69

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Marishetty Peda Gangaram Vs. Chukka Hanumandlu & Anr., 111institution of a plaint in a civil case to thestage of final determination by a judgmentand decree of the Court. Whether the widestmeaning should be given to the word 'trial'or that it should be construed narrowly mustnecessarily depend upon the nature andobject of the provision and the context inwhich it used.

Therefore, the word trial in Section 10 willhave to be interpreted and construedkeeping in mind the object and nature ofthat provision and the prohibition to 'proceedwith the trial of any suit in which the matterin issue is also directly and substantiallyin issue in a previously instituted suit'. Theobject of the prohibition contained in Section10 is to prevent the Courts of concurrentjurisdiction from simultaneously trying twoparallel suits and also to avoid inconsistentfindings on the matters in issue. Theprovision is in the nature of a rule ofprocedure and does not affect the jurisdictionof the Court to entertain and deal with thelater suit nor does it create any substantiveright in the matters. It is not a bar to theinstitution of a suit. It has been construedby the Courts as not a bar to the passingof interlocutory orders such as an order forconsolidation of the later suit with earliersuit, or appointment of a Receiver or aninjunction or attachment before judgment.The course of action which the Court hasto follow according to Section 10 is not toproceed with the 'trial' of the suit but thatdoes not mean that it cannot deal with thesubsequent suit any more or for any otherpurpose. In view of the object and natureof the provision and the fairly settled legalposition with respect to passing ofinterlocutory orders it has to be stated that

the word 'trial' in Section 10 is not usedin its widest sense. (emphasis supplied)

9. Inasmuch as allowing interlocutoryapplications would not in any way affectthe rights of the parties, muchlessdetermines the rights of the parties or itaffects the trial of the suit nor amountsconducing trial, this Court is of the viewthat the trial Court has not properly exercisedits jurisdiction vested in it in deciding thepetitions.

10. In the circumstances, civil revisionpetitions are allowed and the impugnedorders are set aside. The petitioners arepermitted to take the original registeredsale deeds filed into Court by them bysubstituting with the certified copies withan undertaking to produce the same aswhen required by the Court. Miscellaneouspetitions, if any pending in these casesshall stand disposed of. There shall be noorder as to costs.

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42


2017(3) L.S. 112 (D.B.)


ANDHRA PRADESH


Sanjay Kumar &The Hon’ble Dr.Justice

Shameem Akther

Gopu Srinivas Reddy@ Parandamulu ..Appellant

Vs.The State of A.P., ..Respondent

CRIMINALPROCEDURE CODE,Secs.374(2) and 235(2) – INDIAN PENALCODE,Sec. 302 – Appellant questionedthe judgment of the trial court, whereby he is sentenced to undergoimprisonment for life – Instant case isbased on circumstantial evidence.

Homicidal death of B. Laxmi bydrowning allegedly committed by herson-in-law (appellant) by pushing herinto agricultural well since she forcedhim to reveal whereabouts of hermissing daughter, renuka – Appellantwas suspected by his wife renuka dueto his physical relationship with womenof loose character, which in turn madehim to get vexed up with her – Appellantis also alleged of killing renuka.

Held – In the cases based oncircumstantial evidence, circumstancesfrom which inference of guilt is sought

to be drawn, must be cogently andfirmly establish the guilt of appellant– Circumstances, taken cumulatively,should form a chain so complete thatthere is no escape from conclusion thatwithin all human probability the crimewas committed by appellant and noneelse – No such evidence is availableon record – Even at the time of inquest,there were no witnesses to identify deadbody and under these circumstances,I.O. ought have collected bloodsamples, soft tissues, hair etc., from deadbody and preserved the same and couldhave sent them to Forensic ScienceLaboratory to establish the identificationof dead body – Investigating officersare required to subject the dead bodyfor its proper identification by followingrequired procedures to conduct DNAtest – Prosecution failed to establishcomplete chain of circumstancesbeyond reasonable doubt - Appellantis acquitted of the charges framedagainst him – Criminal appeal isallowed.

Cases referred :1) (1984) 4 SCC 116 = AIR 1984 SC 16222) 2004 (2) ALD (Crl.) 677 (SC)

Smt.A.Gayatri Reddy,Advocate fortheAppellant.Public Prosecutor,for Respondent.

J U D G M E N T(per the Hon’ble Mr.Justice

Shameem Akther)

This Criminal Appeal is filed under Section374(2) of the Code of Criminal Procedure,Crl.A.No.114/11 Date:11-8-2017

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Gopu Srinivas Reddy @ Parandamulu Vs. The State of A.P., 1131973 (for brevity, Cr.P.C.) questioning thejudgment dated 13.01.2011, passed by thelearned Principal Sessions Judge, Warangal(for brevity, the trial Court) in Sessions CaseNo.106 of 2008, whereby the trial Courtconvicted the appellant-accused underSection 235(2) Cr.P.C. for the offencepunishable under Section 302 of the IndianPenal Code, 1860 (for brevity, I.P.C.) andsentenced him to undergo imprisonment forlife till the rest of his life without any remissionand also to pay fine of Rs.10,000/- (Rupeesten thousand only) with a default sentenceof simple imprisonment for a period of threeand half years.

2. Heard Smt. A.Gayatri Reddy, the learnedcounsel appearing for the appellant, andthe learned Public Prosecutor appearing forthe State.

3. The case of the prosecution is as follows:

(a) This is a case of homicidal death ofB.Laxmi by drowning allegedly committedby her own son-in-law, who is the appellantherein, on 18.04.2007 at about 4-30 hoursby pushing her into an agricultural well nearTalla Padmavathi Pharmacy College,Rangashaipet, since she forced him to revealthe whereabouts of her missing elderdaughter-Renuka. The appellant hailing froman agricultural family, studied upto 10thClass, worked under a Commission Agentat Kamareddy, married Ms.Venkata Laxmiof Begumpet. The appellant developedphysical relationships with several womenof lose character and in order to meet theexpenses, he resorted to committing theftswhich forced his first wife to return backto her parental abode. Later, he fell in love

with Ms.Renuka, elder daughter of Smt.B.Laxmi-deceased, married her and stayedwith her at Karimnagar, continued to committheft of vehicles and got arrested by SiddipetPolice. After release from jail, he and hiswife-Renuka migrated to Bheemaram,Hanamkonda and settled down in a rentedhouse. While so, he came in contact witha tractor driver-B.Raju and he along withhis brother-in-law, B.Anjaneyulu and B.Rajustarted committing theft of several vehicles.His wife-Renuka suspected his fidelity dueto his physical relationship with women ofloose character and started questioning himabout his activities, leading to altercationsbetween them, which made him to get vexedup with her. On 25.08.2006 at about 04-00 hours, he took his wife-Renuka by acar to the outskirts of Ammavaripet, pushedher into a big quarry pit filled with water,concerning Crime No.115 of 2006 ofMadikonda Police Station registered underSection 174 Cr.P.C. for the offencespunishable under Sections 302 and 201I.P.C., which ended in his conviction andsentence to imprisonment for life in SessionsCase No.787 of 2007 on the file of the IIAdditional Sessions Judge, Warangal.

(b) Later, the appellant fell in love withMs.Haritha of Kesamudram and marriedher at Tirupathi. Subsequently, he shiftedMrs.B.Laxmi (mother-in-law) and her familyfrom Komuravelli and kept them atBheemaram. However, B.Laxmi continuedto pressurize the appellant to reveal thewhereabouts of her missing elder daughter-Renuka and forced him for money as shegot indebted to others at Komuravelli village,due to which he decided to do away withher life (B.Laxmi) once for all. On 18.04.2007

44

114 LAW SUMMARY (Hyd.) 2017(3)at about 04-30 hours, he took B.Laxmi, hismother-in- law by jeep on the pretext thathe would give money and see her off atthe bus stand but drove the jeep towardsUrsu Gutta, got it filled up with fuel on theway by P.W.13-A.Prashanth in filling station,had tea in the hotel of P.W.5-N.KumaraSwamy, took B.Laxmi towards TallaPadmavathi Pharmacy College, stopped thejeep there on the pretext of attending tocalls of nature and asked B.Laxmi too togo for urination, but when she alighted fromthe jeep, he suddenly pounced on her fromher behind and pushed her into a nearbyagricultural well and visited it on the followingday to confirm about her death, found herdead body floating in the water and returnedback home and informed P.W.3-B.Sunithaand L.W.6-B.Geetha that their mother wentto Komuravelli. On sighting a dead bodyfloating in the well on 27.04.2007, P.W.1-P.Vasundara lodged a report in Ex.P.1 withthe Station House Officer, Mills ColonyPolice Station, about floating of the deadbody in the agricultural well of oneP.Kanakaiah. On the basis of which, a casein Crime No.120 of 2007 was initiallyregistered under Section 174 Cr.P.C.

(c) P.W.11-Assistant Sub Inspector of Policetook up investigation, visited the scene ofoffence, secured the presence of mediators-P.W.3 and L.W.6-B.Geetha, got the sceneof offence photographed, seized one saree,blouse and petticoat from the scene, gotthe dead body retrieved from the well,photographed the same, conducted aninquest over the dead body and referred thesame for postmortem examination. Later,P.W.12-Inspector of Police, Mills ColonyPolice Station took up investigation, verified

the investigation done by P.W.11-AssistantSub Inspector of Police and while he wasmaking efforts to establish the identity ofthe dead body, on 10.06.2007 at about 09-00 hours, P.W.9-Sub Inspector of Police,Mulkanoor Police Station arrested theappellant in Crime No.64 of 2007 for theoffences punishable under Section 307 r/w 34 I.P.C. of Mulkanur Police Station,Karimnagar District, while checking vehiclesat Mulkanur Bus Stand and interrogatedhim, during which he voluntarily confessedthat on 18.04.2007, he killed his mother-in-law B.Laxmi by pushing her into theagricultural well near Padmavathi PharmacyCollege, Ursu Gutta, Warangal, as she wasinsisting him to pay money to clear off herdebts and to reveal the whereabouts of hermissing elder daughter-Renuka and alsoconfessed commission of other propertyoffences he had committed. On receipt ofintimation about the same from P.W.9-SubInspector of Police, P.W.12- Inspector ofPolice, Mills Colony Police Station,Warangal, in turn, altered the Section ofLaw from 174 Cr.P.C. to Section 302 I.P.C.and issued an express memo to allconcerned. Later, he visited Komuravelli andS.R.T.Thota, Ursu Gutta, secured thepresence of P.Ws.3 to 5, 13 and L.W.6-Geetha, recorded their statements andshowed photographs of the deceased tothem and they identified the dead body asthat of the mother of P.W.3-B.Sunitha.P.W.10-Dr. K.V.Ramana Murthy conductedpostmortem examination on the dead bodyof B.Laxmi and opined that the cause ofher death was due to drowning. Thereafter,the appellant was sent up for remand tojudicial custody in this case too on30.07.2007, by the learned Additional

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Gopu Srinivas Reddy @ Parandamulu Vs. The State of A.P., 115Judicial Magistrate of First Class, Warangal.After completion of investigation, P.W.12-Inspector of Police filed charge sheet againstthe appellant for the offence punishable underSection 302 I.P.C.

(d) The learned Additional Judicial Magistrateof First Class, Warangal, took cognizanceof the offence punishable under Section302 I.P.C., registered the charge sheet asP.R.C. No.88 of 2007 and committed thecase to the Principal Sessions Court,Warangal, as the case is exclusively triableby the Court of Sessions, where it wasregistered as Sessions Case No.106 of2008.

(e) On appearance of the appellant beforethe trial Court, a charge for the offencepunishable under Section 302 I.P.C. wasframed against him, read over and explainedto him in his language. When questioned,he pleaded not guilty and claimed to betried. During trial, the prosecution examinedP.Ws.1 to 13 and marked Exs.P.1 to P.11.After closure of evidence of the prosecution,the appellant-accused was examined underSection 313(1)(b) Cr.P.C. explaining himthe incriminating material appearing againsthim in the evidence of prosecutionwitnesses. For which, he pleaded not guiltyand stated that he was implicated in a falsecase. The appellant-accused did notexamine any witnesses to defend him beforethe trial Court.

(f) The trial Court, after perusal of the entireevidence on record and after hearing bothsides, held that the appellant- accused isfound guilty for the charge under Section302 I.P.C. and accordingly convicted him

under Section 235(2) Cr.P.C. for the saidcharge and after hearing him on the questionof sentence, sentenced him to undergoimprisonment for life till he is alive and heshall not be released from prison till therest of his life and also to pay fine ofRs.10,000/- (Rupees ten thousand only)with a default sentence of simpleimprisonment for a period of three and half(3) years. The trial Court further held thatthe sentence of imprisonment for life in thiscase shall run consecutively after his earliersentence of imprisonment for life in SessionsCase No.787 of 2007 on the file of the IIAdditional Sessions Judges Court,Warangal. The trial Court has given libertyto the appellant to set off the pre-trial custodyalready undergone by him in this case from30.07.2007 to 13.01.2011 under Section428 Cr.P.C. Questioning the said convictionand sentence imposed, the appellant-accused preferred the present appeal.

4. Learned counsel for the appellant wouldsubmit that there are no direct witnessesto the commission of the offence and thecase rests on the circumstantial evidence;the prosecution failed to prove the guilt ofthe appellant by legal and reliable evidence;there is no evidence to believe that thedeath of B.Laxmi is homicidal; there is nolegal and acceptable evidence to believethat the dead body belonged to B.Laxmi;the trial Court erred in relying on the allegedconfession of the appellant said to be madebefore the police, which is inadmissible inevidence; and ultimately, prayed to allowthe appeal by setting aside the convictionand sentence awarded in the impugnedjudgment dated 13.01.2011 passed by thetrial Court in Sessions Case No.106 of 2008.

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116 LAW SUMMARY (Hyd.) 2017(3)5. On the other hand, learned PublicProsecutor would submit that there is ampleevidence on record, more particularly, theevidence of P.Ws.4, 5, 8 and 13, to provethe guilt of the appellant for the offencepunishable under Section 302 I.P.C.; thetrial Court had rightly convicted andsentenced the appellant; and ultimately,prayed to dismiss the appeal.

6. In view of the contentions putforth byboth sides, the point for determination inthis appeal is, on 18.04.2007, whether theappellant had caused the death of hismother-in-law by name B.Laxmi by pushingher into an agricultural well near TallaPadmavathi Pharmacy College,Rangashaipet?

7. POINT: Admittedly, the entire case ofthe prosecution is based on circumstantialevidence. In this regard, it is apt to referthe decision of the Honble Supreme Courtrendered in SHARAD BIRDHICHANDSARDA V. STATE OF MAHARASHTRA(1), wherein it was held as hereunder:

"When a case rests upon circumstantialevidence, such evidence must satisfy thefollowing tests:

(i) the circumstances from which aninference of guilt is sought to be drawn,must be cogently and firmly established;

(ii) those circumstances should be of definitetendency unerringly pointing towards guiltof the accused;

(iii) the circumstances, taken cumulatively,

should form a chain so complete that thereis no escape from the conclusion that withinall human probability the crime wascommitted by the accused and none else;and

(iv) the circumstantial evidence in order tosustain conviction must be complete andincapable of explanation of any otherhypothesis than that of the guilt of theaccused and such evidence should not onlybe consistent with the guilt of the accusedbut should be inconsistent with hisinnocence.

The conditions precedent in the words ofthis Court, before conviction could be basedon circumstantial evidence, must be fullyestablished. They are:

(i) the circumstances from which theconclusion of guilt is to be drawn shouldbe fully established. The circumstancesconcerned must or should and not may beestablished;

(ii) the facts so established should beconsistent only with the hypothesis of theguilt of the accused, that is to say, theyshould not be explainable on any otherhypothesis except that the accused isguilty;

(iii) the circumstances should be of aconclusive nature and tendency;

(iv) they should exclude every possiblehypothesis except the one to be proved;and

(v) there must be a chain of evidence so1) (1984) 4 SCC 116 = AIR 1984 SC 1622

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Gopu Srinivas Reddy @ Parandamulu Vs. The State of A.P., 117complete as not to leave any reasonableground for the conclusion consistent withthe innocence of the accused and mustshow that in all human probability the actmust have been done by the accused."

8. The conditions required to prove the guiltyof the accused based on circumstantialevidence are enunciated in the followingcases:

"1. Hanumant Govind Nargundkar v. Stateof M.P. : AIR 1952 SC 3442.

2. Sharad Birdhichand Sarda v. State ofMaharashtra : (1984) 4 SCC 116 : AIR 1984SC 1622.

3. C.Chenga Reddy v. State of A.P. : (1996)10 SCC 193."

9. The case of the prosecution is that theappellant on 18.04.2007 around 4-30 a.m.,took his mother-in-law by name BayyapuLaxmi (deceased) to an agricultural well,situated near Talla Padmavathi PharmacyCollege, Rangeshaipet, Warangal, andpushed her into the well and caused herdeath by drowning her. The motive forcommission of such act is that the daughterof the deceased by name G.Renuka fell inlove with the appellant and married him,they begot two children and thereafter,G.Renuka was missing, so his mother-in-law-B.Lakshmi, who is said to be deceasedin this case, repeatedly insisting theappellant for whereabouts of her daughter-Renuka and also demanding money fromhim to clear off her debts. To prove the guiltof the appellant, the prosecution examinedP.Ws.1 to 13 and got marked Exs.P.1 to

P.11. No defence witnesses were examinedand no material objects were marked.

10. The evidence of P.W.1-P.Vasundhara,who is de facto complainant in this case,reveals that she is working as 12th WardCorporator, Municipal Corporation,Warangal; on 27.04.2007, she receivedinformation that a dead body of a lady wasfloating in the agricultural well of PogakuKankaiah; on that she went to the said welland found a dead body; immediately, shelodged a complaint with the police underEx.P.1; and the police examined her andrecorded her statement. The evidence ofP.W.2-Kota Babu reveals that he is a residentof Veerannakunta; he is doing labour work,on instructions from the police about twoyears back, he along with L.W.2-V.Yakaiahremoved a dead body aged between 45 and50 years, which was floating in the wellof one Pogaku Kankaiah. P.W.3-BayyapuSunitha is none other than the daughterof B.Laxmi. Her evidence reveals that afterdeath of their father, they shifted toKomravelli and her mother-B.Laxmi wasrunning a hotel; her elder sister-Renuka fellin love with the appellant and married him,they begot two children and they used toreside at Bheemaram; about one year priorto the death of her mother, the appellantcame to her mother and stated that herelder sister-Renuka was missing; and later,he shifted to Hanamkonda and married oneHaritha. She further deposed that after somedays, they found her mother missing, theysearched for her but could not trace her;one month after missing of her mother, theappellant and Haritha came to her andinformed her that he would take her to hermother and took her by his motorcycle

48

118 LAW SUMMARY (Hyd.) 2017(3)during midnight at 2-00 a.m. near a welland pushed her in the well in order to doaway her life and left the place thinking thatshe died; later, she came to know throughthe police that the appellant had committedmurder of her sister-Renuka and her mother-Laxmi; and the police examined her andrecorded her statement. The evidence ofP.W.4-M.Bala Narsaiah reveals that B.Laxmiwas his younger sister. He spoke aboutthe marriage of Renuka with the appellant,missing of Renuka, conducting search forher, and after some time, he found B.Laxmimissing. He further stated that the appellantwas arrested by Mulkanoor Police duringinterrogation, the appellant confessed aboutthe commission of murder of his sister-Laxmi and Renuka.

11. P.W.1-de facto complainant lodgedEx.P.1-report with the police. P.W.2 is theperson who removed the dead body of awoman floating in the well. He did not deposeabout identification of the dead body. P.W.3is the daughter of the deceased and P.W.4is the brother of the deceased and theyalso did not say that they have seen thedeceased and the appellant together, butsimply they stated that on interrogation,the appellant confessed the commission ofthe murder of Renuka as well as B.Laxmi.The contention of the prosecution is thatP.W.5-N.Kumaraswamy saw the deceasedand the appellant together, but this witnessdid not support the case of the prosecutionand turned hostile. In his examination inchief, he has clearly stated that he did notsee the appellant at any time. Ex.P.2 isthe statement said to be given by P.W.5to the police. P.W.6-K.Mallesham is awitness for inquest panchanama conducted

over the dead body of the deceased. Healso did not support the case of theprosecution. His signature (Ex.P.3) on theinquest panchanama was marked.

12. The evidence of P.W.8-P.Mogili revealsthat he is a resident of Bheemdevarapalliand he knew L.W.13-S.Bhadraiah; abouttwo years back at 9-00 a.m., police calledthem to the police, he found the appellantin the custody of police and, oninterrogation, the appellant confessed thathe had killed the deceased in this case15 or 20 days prior to arrest at theagricultural well near Talla PadmavathiCollege by taking the deceased by jeep.He further that the appellant also confessedthat he has killed his wife and also triedto kill his sister-in-law (P.W.3) and the policedrafted the said confessional panchanamaand obtained his signature. Admittedly, thereis specific evidence of P.W.8 that he wascalled to the police station by the police,and on interrogation, the appellant confessedthe commission of the offence and otheroffences. This piece of evidence isinadmissible in evidence. There is noevidence that the appellant voluntarilyconfessed the commission of offence in hispresence. Moreover, the so-called confessionis said to have made at the police stationin the presence of the police oninterrogation. This evidence does not qualifythe requirement under Sections 24, 25 and27 of the Indian Evidence Act, 1872.

13. P.W.9-K.Srinivas, Sub Inspector ofPolice, Mulkanoor, deposed that heconducted investigation in this case andduring investigation, he arrested theappellant in connection with Crime No.64

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Gopu Srinivas Reddy @ Parandamulu Vs. The State of A.P., 119of 2007 of Mulkanoor Police Station andon interrogation, the appellant voluntarilyconfessed about commission of the offencein this case. P.W.10-Dr. K.V.Ramana,Assistant Professor, Department of ForensicMedicine, KMC, Warangal, deposed thaton 28.04.2007, on a requisition made bythe Station House Officer, Mills ColonyPolice Station, he conducted postmortemexamination over an unknown female deadbody from 9-15 a.m. to 10-15 a.m. andfound no ante-mortem external or internalinjuries over the dead body and opined thatapproximate time of death was three to fourdays prior to the postmortem examinationand the cause of death was due to drowningand he issued Ex.P.5-postmortemexamination report. Admittedly, no bloodsamples were collected from the dead bodyand no DNA test was conducted. P.W.3-daughter of the deceased and P.W.4-brotherof the deceased have not stated anythingabout identification of the dead body.

14. The evidence of P.W.11-M.Venkateshwarlu, Assistant Sub Inspectorof Police, Mills Colony Police Station,Warangal, reveals that on 27.04.2007 atabout 2-30 p.m., on receipt of Ex.P.1-reportfrom P.W.1, he registered the same as acase in Crime No.120 of 2007 under Section174 Cr.P.C. and issued Ex.P.6-F.I.R., sentcopies of F.I.R. to all concerned, recordedstatement of P.W.1-B.Vasundhara, visitedthe scene of offence, took photographs ofthe dead body and got it removed from thewell with the help of P.W.2-Kota Babu, L.W.2-Velpula Yakaiah and L.W.4-Kota Sanjeeva,held inquest over the dead body in thepresence of P.Ws.6 and 7 under Ex.P.7-inquest panchanama and sent the dead

body to MGM Hospital, Warangal forconducting postmortem examination. Healso did not speak about the identificationof the dead body in this case. The evidenceof P.W.12-C.Prabhakar, Inspector of Police,reveals that on 14.06.2007, he took upinvestigation in this case, visited the sceneof offence, re-examined the witnesses,verified the investigation done by P.W.11and found it on correct lines and on receiptof confessional statement of the appellant,he altered Section of Law from 174 Cr.P.C.to Sections 302 and 201 I.P.C. and Ex.P.8is the altered F.I.R.

15. The evidence of P.W.13-A.Prashanthreveals that he is a resident of S.R.Nagar,Hyderabad, and working as Security Guardin a private company; earlier, he workedas a Cashier in a petrol bunk inHanamkonda located on Warangal-Khammam road in Kareemabad locality; inthe year 2007, during early hours, one personcame by jeep and took diesel in his jeep,he noticed that a woman was present inhis jeep; thereafter, the jeep left, theystopped the jeep near a tea hotel, situatednear the petrol bunk; ten minutes thereafter,the jeep left the place and proceeded backtowards Hanamkonda, at that time, henoticed that only one person who was drivingthe jeep was present in that jeep, the saidperson was present in the Court Hall. Inthe cross-examination, P.W.13 stated thathe has no idea about the number of thevehicle, daily 100 vehicles used to cometo their petrol bunk for filling petrol or diesel;he cannot identify all those persons, butsince it was early hours, he could identifythe appellant. He further deposed in hiscross-examination that he worked at the

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120 LAW SUMMARY (Hyd.) 2017(3)said petrol bunk for a period of three orfour months, he did not say how manypersons visited the petrol bunk in earlyhours, he did not say as to whether heissued a receipt or not to the appellant.He further deposed in his cross-examinationthat there were four persons working in oneshift at the petrol bunk, he is a residentof Karimnagar, and the police had shownthe appellant in the Court premises on24.02.2010. He admitted that he did notknow the appellant prior to the incident, hesaw the appellant on the date of incidentand again on 24.02.2010. He denied thatthe appellant did not come to his petrolbunk on that day. He also denied that heis deposing false. Admittedly, P.W.13, whois said to be the circumstantial witness,simply stated that in the year 2007 in theearly hours, the appellant had purchaseddiesel from his petrol bunk, and he noticedone woman, he did not know the jeep numberand he did not give descriptive particularsof the driver of the jeep as well as thatwoman, simply he stated that after tenminutes, the jeep left the place andproceeded back towards Hanamkonda, atthat time, he found driver only in the jeepand he did not give date or month of findingthe appellant at petrol bunk or passing bythat area. P.W.13 clearly and categoricallyadmitted that he saw the appellant on thedate of alleged incident and again only on24.02.2010. In this case, Ex.P.1 was lodgedwith the police on 27.04.2007 and the deathin question was said to be caused on18.04.2007 around 4-30 a.m. If that is thecase, in the darkness, it is not possiblefor P.W.13 to identify the person passingin that area. The sole circumstantialevidence relied on by the prosecution is

P.W.13. Admittedly, P.Ws.3 and 4, who aredaughter and brother of B.Laxmi did notsee the appellant and B.Laxmi togetherbefore her missing. Both of them came toknow about the alleged death of B.Laxmiafter the so-called confession made by theappellant to the police. Admittedly, thereare no direct witnesses to connect theappellant with the commission of the so-called death of B.Laxmi in this case. Theevidence of P.W.3 is shabby anddiscreditable and it is not free from doubt.P.W.5 is not a reliable witness. Thecircumstances from which the inference ofguilt is sought to be drawn, must be cogentlyand firmly established the guilt of theappellant. Those circumstances should beof definite tendency unerringly pointingtowards guilt of the appellant. Thecircumstances, taken cumulatively, shouldform a chain so complete that there is noescape from the conclusion that within allhuman probability the crime was committedby the appellant and none else. Thecircumstantial evidence, in order to sustainconviction, must be complete and incapableof explanation of any other hypothesis thanthat of the guilt of the appellant and suchevidence should not only be consistent withthe guilt of the appellant but should beinconsistent with his innocence. [See:Gambhiriv v. State of Maharashtra (1982)2 SCC 351 : AIR 1982 SC 1157]. No suchevidence is available on record either tohold that the dead body in question belongsto B.Laxmi or the appellant had causeddeath of B.Laxmi. The trial Court, whiledetermining the charge under Section 302I.P.C., had relied on the evidence of P.Ws.3and 4 and the evidence of P.W.8, who issaid to be the mediator for confession of

51

Gopu Srinivas Reddy @ Parandamulu Vs. The State of A.P., 121the appellant before the police at the policestation. It is inadmissible under Section 24of the Indian Evidence Act, 1872. The trialCourt also believed the evidence of P.W.13,which is inspiring no confidence to act asthere was no identification parade of theappellant and he has deposed before theCourt after three years of the incident.

16. It is apt to refer the decision of theHonble Supreme Court in DASARI SIVAPRASAD REDDY V. PUBLICPROSECUTOR, HIGH COURT OFANDHRA PRADESH(2) , wherein it washeld that a strong suspicion, no doubt, mayexist against the appellant but suchsuspicion cannot be the basis of conviction,going by the standard of proof required ina criminal case and the distance betweenmay be true and must be true shall be fullycovered by reliable evidence adduced bythe prosecution. In the instant case, thereis no such proof and standard of evidence.The evidence of P.W.13 is not inspiringconfidence to believe the commission ofdeath of B.Laxmi in this case. P.W.13 isnot trustworthy witness. Though the defenceof the appellant is that he is innocent anddenied the incriminating evidence when hewas examined under Section 313 Cr.P.C.stating Abaddham (false), in thecircumstances of the case, he cannot becalled to rebut the same, as required underSection 106 of the Indian Evidence Act,1872. The prosecution failed to establishthe complete chain of circumstances beyondreasonable doubt. There is also no DNAtest conducted to prove that the dead bodybelongs to B.Laxmi. The evidence of P.W.10-doctor reveals only the death of the

deceased in this case was due to drowningand there is no oral or documentary evidenceto prove the death in question was ahomicidal. Further, there is no legallyacceptable evidence to hold that the deadbody in this case belongs to B.Laxmi. Eventhe prosecution could not prove the deathof B.Laxmi by leading convincing and cogentevidence and so also the commission ofalleged murder in this case.

17. In these circumstances, the prosecutionfailed to prove the charge under Section302 I.P.C. framed against the appellant andthe impugned judgment dated 13.01.2011passed by the trial Court in Sessions CaseNo.106 of 2008 is liable to be set aside.

18. In every trial for manslaughter or for theoffence of causing hurt to human body,opinions of medical officers are Invited toascertain the cause of death, injuries,whether the injuries are anti-mortem or post-mortem, the probable weapon used, theeffect of injuries, medicines, poisons, theconsequences of wounds whether they aresufficient in the ordinary course of natureto cause death, the duration of injuries andthe probable time of death and also toidentify the dead body. In this regard, DNAtest is very helpful. In such trials sometimesthe plea of unsoundness of mind or minorityis taken by the accused. In trials for offencesof kidnapping and rape, the questioninvariably in dispute is the age of the personkidnapped or of the girl raped. In all suchcases the medical opinion is adduced toestablish insanity and minority. In rapecases apart from showing the minority ofthe girl, the medical opinion is tendered toestablish the offence of rape.2) 2004 (2) ALD (Crl.) 677 (SC)

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122 LAW SUMMARY (Hyd.) 2017(3)19. The word DNA stands fordeoxyribonucleic acid. It is a biologicalblueprint of life DNA fingerprinting profile isunique to each individual and hence theDNA profiling is used to identify an individualand his lineage. The technological deviceis used to identify a person in criminal andcivil cases. The main advantage of thisdevice is that the test can be done on smallsamples and can accurately establish theiroriginals with a high degree of certainly.DNA is hardly affected by the environmentalfactors. DNA is stable and therefore muchresistance to degradation caused by theenvironmental changes. It shows the samegenetic pattern irrespective of the biologicalmaterial like hair, seminal stains fresh blood,soft tissues, hard tissue etc. DNA fingerprinting can connect the crime scene ora body to another particular individual. Dryblood stains and sperm can also be usedfor DNA test. These tests are highly usefulin various criminal investigations involvingoffences like rape, murder, kidnapping,exchange of babies, infanticide,abandonment of newborn child, illegalabortion, paternity related disputes,immigration, inheritance, assignation etc.DNA test results are very reliable. Controlsamples are provided with the main sampleto avoid error in test and reporting. Howeverin order to make DNA evidence mostsuccessful, there must be a strong androbust legislation and reputed elaborationwith standardized operational procedures.The laboratories engaged in DNA testingmust be well equipped and techniciansmust be highly qualified and skilled. DNAtest is such a new scientific invention whichis used for scientific investigation in criminalcase. This technique is particularly much

useful in cases where eye witnesses arenot available.

20. The whole case is based oncircumstantial evidence. A highlydecomposed dead body was floating in awell. Even at the time of inquest, there wereno witnesses to identify the dead body.Under these circumstances, theinvestigating officer ought to have collectedblood samples, soft tissues, hard tissues,hair, etc., from the dead body and preservedthe same and in the course of investigation,could have sent them along with the admittedblood samples, etc., of the relatives, to theForensic Science Laboratory to establishthe identify of the dead body. No suchefforts were made in this case. In the casesof similar circumstances, all the investigatingofficers are required to subject the deadbody for its proper identification by followingthe required procedures to conduct DNAtest. The Director General Police shall directall the Subordinate Officers, particularly theInvestigating Officers, to collect the samplesfrom the dead body, i.e., hair, tissues, blood,bloodstains, etc., and send them for DNAtest for authentic identification of thedeceased persons. The Registry is directedto communicate the copy of judgment tothe Director General Police, State ofTelangana and the State of Andhra Pradesh,who in turn, shall communicate the sameto all their Subordinate Officers includingthe Investigating Officers for compliance.

21. In the result, the appellant is acquittedof the charge framed against him underSection 302 I.P.C., and consequently, theconviction and sentence recorded againstthe appellant for the said charge by the

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M/s.Lokesh Foundaries Pvt.Ltd. Vs. M/s.Varun Motors & Ors., 123

trial Court in Sessions Case No.106 of 2008,vide judgment dated 13.01.2011, is set aside.The Criminal Appeal is allowed accordingly.Since the appellant is on bail, he is directedto report before the Superintendent, CentralPrison, Warangal, forthwith to set him freeas per the procedure established, if he isnot required in any other case.

22. As a sequel, miscellaneous petitions,if any pending in this appeal, shall standclosed.

--X--

2017(3) L.S. 123


ANDHRA PRADESH


V.Ramasubramanian

M/s.Lokesh FoundariesPvt.Ltd. ..Petitioner

Vs.M/s.Varun Motors &Ors., ..Respondents

CIVIL PROCEDURE, Sec.2(17)and Order XVI Rule 6 – CIVIL RULESOF PRACTICE, Rule 129 – BANKERSBOOK EVIDENCE ACT, Sec.4 –Aggrieved by order passed by trial court,at the instance of first respondent in asuit for specific performance, directingsecond respondent/ Bank to producecertain documents, appellant preferredpresent revision.

First respondent filed anapplication under Rule 129(1) of CivilRules of Practice, praying forsummoning from the bank, the entirecorrespondence to One TimeSettlement proposal between petitionerand the bank – Trial court allowed theapplication.

Held – Object behind BankersBook Evidence Act is to ensure thatoriginal books of accounts are retainedby bank to enable them to carry ontheir day-to-day transactions – Thisobject is not stultified by production ofsome correspondence relating to a OneTime Settlement proposal betweenpetitioner and the bank - Endeavourof every court should be to find out thetruth, to enable the court to renderjustice – The summoning of documentsin question, would certainly enable thecourt to arrive at the truth –This Courtfinds absolutely no reasons to interferewith the Order of Trial court - Revisionpetition is dismissed.

Smt Ch.Laxmi Chaya, Advocate forAppellant.M/s.Bharadwaj Associates, Advocate forRespondent.

O R D E R

Aggrieved by an order passed by the trialCourt, at the instance of the plaintiff in asuit for specific performance, directing thesecond defendant-bank to produce certaindocuments, the 1st defendant has comeup with the present revision.

2. Heard Mr. S. Satyanarayana Prasad,CRP.No.3469/17 Date:6-9-2017

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124 LAW SUMMARY (Hyd.) 2017(3)learned senior counsel for the petitioner/1st defendant and Mr. Vedula VenkataRamana, learned senior counsel appearingfor the 1st respondent/ plaintiff.

3. The 1st respondent herein filed a suitin O.S.No.50 of 2007 for specificperformance of an agreement of salepurportedly entered into between the 1strespondent company and the petitionerherein on 21.06.2005. It was recorded inthe said agreement of sale that the totalsale consideration would be Rs.2,50,00,000/-; that the 1st respondent-plaintiff paid asum of Rs.50.00 lakhs in cash as advanceat the time of execution of the agreementof sale; that the 1st respondent would alsopay a sum of Rs.31.00 lakhs to the 2ndrespondent/2nd defendant-bank, by the endof June 2005 in a no lien account; and thatsince the petitioner had dues to be paidto the 2nd respondent Bank, for thesettlement of which, a one time proposalwas being worked out, the first respondent/plaintiff should pay the balance of saleconsideration within 6 months from the dateof the Bank issuing a letter in this regard.

4. The petitioner/1st defendant filed a writtenstatement completely denying the executionof the agreement of sale. The denial wastotal without the winking of the eye. Butnevertheless, the signatures found in thesuit agreement of sale was admitted by thepetitioner. In paragraph 32 of the writtenstatement the petitioner claimed (i) that thesuit agreement of sale is a fabricateddocument, (ii) that just for enabling thepetitioner to negotiate with the Bank for theOTS proposal, the first respondent/plaintiffkept a deposit off Rs.31 lakhs with the

Bank on the understanding that thepetitioner would repay the same with interestat 12% per annum; (ii) that at that timemany signatures were obtained in blankstamp papers and those signed blank stamppapers had been made use of by the 1strespondent-plaintiff to fabricate an agreementof sale and to institute a suit for specificperformance; and (iii) that the ManagingDirector of the petitioner company did nothave the authority to enter into anyagreement of sale. Curiously, it was theManaging Director of the petitioner whosigned the written statement, calling thesuit agreement of sale as fabricated anddenying his own authority to execute anagreement of sale. Though I am temptedto comment upon such a defence takenby the petitioner, I refrain from doing so,since it may have a bearing upon theoutcome of the suit.

5. In the light of such a stand taken bythe petitioner/1st defendant in its writtenstatement, the 1st respondent-plaintiff filedan application under Rule 129 (1) of theCivil Rules of Practice, in I.A.No.252 of2015 praying for summoning from the Bank,the entire correspondence relating to OneTime Settlement proposal between thepetitioner and the Bank. The said applicationwas allowed by the trial Court, by an orderdated 1-6-2005, but the said order was setaside by a learned Judge of this Court inC.R.P.No.2192 of 2015 by an order dated16-09-2016. But the learned Judge thoughtfit to remand the application back to thetrial court for a fresh disposal, on the shortground that certain technical aspects hadnot been considered by the trial Court beforeallowing the application.

55


6. Therefore, the application was again takenup for hearing by the trial Court and byan order dated 05-07-2017, the trial Courtonce again allowed the application.Challenging the said order, the 1st defendanthas come up with the above revision onceagain.

7. Assailing the order of the trial Court, itis contended by Mr. S. SatyanarayanaPrasad, learned senior counsel for thepetitioner:

(a) that the trial Court has virtually overruledthe order of this Court in C.R.P.No.2192of 2015 by allowing the application onceagain, taking advantage of the fact that theapplication was remanded for fresh disposal;

(b) that under the Bankers’ Books EvidenceAct, 1891, a certified copy of any entry ina Bankers’ Book shall be received as primafacie evidence and hence, the Court belowought not to have allowed the applicationfor the production of original documentwithout following the procedure prescribedby the said Act;

(c) that under Rule 129(3) of the Civil Rulesof Practice and Circular Orders of the Stateof Andhra Pradesh/Telangana, no Court shallissue summons unless it considers theproduction of the original necessary andunless it is satisfied that the applicationfor a certified copy has been duly made,but has not been granted; and

(d) that when the bank itself is a defendantto the suit, the trial Court could not havedirected the party to a proceeding to produce

a document. 8. I have carefully consideredthe above submissions. Contention No.1:

9. The first contention of the learned seniorcounsel for the petitioner is that by allowingthe application for summoning the productionof the documents, the trial Court has virtuallyoverruled the order of this Court inC.R.P.No.2192 of 2015.

10. But I do not think so. The first orderof the trial Court allowing the applicationunder rule 129 of the Civil Rules of Practicewas set aside by this Court in C.R.P.No.2192of 2015, only on a technical ground thatthe legal parameters were not considered.This Court did not find fault with the orderof the trial Court on merits. If it had doneso, the matter would not have beenremanded back to the trial Court for a freshconsideration.

11. Paragraphs 11 and 12 of the order inC.R.P.No.2192 of 2015, which constitutesthe reasoning portion of the order, readsas follows:

“11. In this factual backdrop theplaintiff filed an application coveredby the impugned order passed in I.A.No. 252 of 2015 before the lowercourt referring to Rule 129 C.R.P toproduce the documents referred inthe notice to produce under OrderXII Rule 8 C.P.C with additionaldocuments, if any. In fact, there isa procedure prescribed by said Rule,which need to be followed beforeseeking documents from public officeto produce as laid down by the twoexpressions of this court (supra). The

56

126 LAW SUMMARY (Hyd.) 2017(3)pertinent question to consider iswhether the procedure contemplatedby Rule 129 C.R.P is followed or not.The provisions of the Bankers’ BooksEvidence govern the bank to grantany certified copies of the documents,unless those are of any confidentialitysaved from production under the Actor under the Right to Information Actand that also require to determine.Once the documents sought forproduction are with the party to thesuit and not from a third party to thesuit, even to summon as a witnessinvoking Order XVI Rule 1 or Rule6 C.P.C does not arise. Thereby thesubmission of the learned counselfor the plaintiff of the application beforethe court below can be treated asunder Order XVI Rules 1 & 6 is nottenable. No doubt, Order XVI Rule7 C.P.C enables the court to call forproduction, on its own, anybody ofany document as a court witness,which is virtually within the power ofthe court contemplated by Section165 of the Evidence Act. The trialcourt did not consider any of theabove aspects while passing theorder, even to treat the applicationas part of interrogatoriescontemplated by Order XI C.P.C,showing that the documents in thecustody of the party to be producedand be sought for production underOrder XI Rule 14 C.P.C.

12. Having regard to the above, the impugnedorder per se since unsustainable, same isset-aside and remanded to the lower courtto decide afresh and by left open the

contentions raised by the parties to raisebefore the lower court and the lower courttherefrom shall determine the applicationby considering the same as filed undercorrect provision from prayer in the petitionis criteria to determine as to within the fourcorners of which of the provisions of law,the petition can be entertained to decide,from mere wrong quoting of provision is noway fatal. No order as to costs.”

12. The reasoning portion of the order ofthis Court in the first revision petitionextracted above, would show that thecontention now raised regarding theBankers’ Books Evidence Act, 1891 andRule 129 of the Civil Rules of Practice werealso raised there, but the learned Judgedid not uphold those contentions finally forsetting aside the order on merits. The learnedJudge merely directed the trial Court toconsider all these legal parameters. Hence,the contention that the trial Court has virtuallyoverruled the order passed by this Courtin the first revision petition, does not meritacceptance. Contention No.2:

13. The second contention of the learnedsenior counsel for the petitioner is that thereis a procedure prescribed by the Bankers’Books Evidence Act, 1891 and that withoutfollowing the same, the Court below couldnot have summoned the production of thedocuments.

14. Before considering the correctness ofthe said contention, it may be necessaryto have a look at the historical backgroundof the Bankers’ Books Evidence Act, 1891.After advent of the British Rule and theestablishment of Banking Companies, there

57

M/s.Lokesh Foundaries Pvt.Ltd. Vs. M/s.Varun Motors & Ors., 127was a spurt in litigation involving BankingCompanies. When the Banking Companieswere required to produce their books ofaccounts and records before courts, inevidence of the transactions made by them,the Banking Companies found it difficult toupdate their entries in the books that werestuck in Courts. Therefore, it was decidedto adopt the English Bankers’ BooksEvidence Act, 1879 and to make the sameapplicable to British India. This is how theBankers’ Books Evidence Act, 1891 waspassed. The primary object of this Act wasto relieve the banks of the obligations andburden of producing the original books ofaccounts in Courts, so that the updatingof entries in their books and their day-to-day operations were not hampered.

15. It is true that the expression “Bankers’Books” is defined in Section 2 (3) of theBankers’ Books Evidence Act 1891 toinclude all records used in the ordinarybusiness of the bank. The definition is asfollows:

“bankers' books” include ledgers, day-books, cash-books, accountbooksand all other records used in theordinary business of the bank,whether these records are kept inwritten form or stored in a micro film,magnetic tape or in any other formof mechanical or electronic dataretrieval mechanism, either onsite orat any offsite location including aback-up or disaster recovery site ofboth”

16. But to contend that the correspondencebetween the petitioner/1st defendant and

the Bank in relation to a One Time Settlementproposal would come within the purview ofSection 2 (3) of the Act, is to make thedefinition so elastic that the tensile stressof the definition cannot bear.

17. It is needless to emphasis that theprovisions of the Bankers’ Books EvidenceAct are intended to safeguard the Bankersagainst routine directions from courts forthe production of original records. Therefore,if at all anyone can invoke the provisionsof the Act in their favour, it is the secondrespondent Bank. Interestingly, the 2ndrespondent–bank in this case, did notchoose to come up with a revision as againstthe impugned order. On the contrary, the2nd respondent bank has actually compliedwith the order passed by the trial Court andthe bank has also produced the recordsbefore the Court. Therefore, I do not thinkthat the petitioner/1st defendant can takeadvantage of the provisions of the Bankers’Books Evidence Act, 1891, when the 2ndrespondent-bank, which is a party to theproceeding, did not have any objection anddid not mind producing the original records.It is admitted by the learned senior counselappearing on both sides that the originalrecords summoned by the Court below underthe order impugned in this revision, havealready been produced by the bank beforethe Court below. Hence, in a revision underArticle 227 of the Constitution, the petitionercannot take advantage of the provisions ofthe Bankers’ Books Evidence Act, 1891.

18. In any case, the object behind theAct is to ensure that the original books ofaccounts are retained by the bank to enablethem to carry on their day-to-day

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transactions without any hindrance. Thisobject is not stultified by the production ofsome correspondence relating to a OneTime Settlement proposal between thepetitioner and the bank. The question ofupdating any entries in thiscorrespondencemay not arise. As a matter of fact, thelearnedsenior counsel for the petitioneradmitted that the entire dues to the bankhave been settled pursuant to the OTS andthe account closed. This is perhaps thereason as to why the bank did not haveany objection or hesitation to produce therecords, which did not require any updating.Hence, the second contention of the learnedcounsel for the petitioner is also rejected.

Contention No.3:

19. The third contention of the learnedsenior counsel for thepetitioner revolvesaround Rule 129 (3) of the Civil Rules ofPractice.Rule 129 (3) of the Rules readsas follows:

“No court shall issue such summonsunless it considers the productionofthe original necessary or is satisfiedthat the application for a certifiedcopyhas been duly made and has notbeen granted. The court shall in everycase record its reasons in writingand shall require the applicant todeposit in court, before the summonsis issued, to abide by the order ofthe court, such sum as it mayconsider necessary to meet theestimatedcost of making a copy ofthe document when produced.”

20. On the face of it, Rule 129 (3) appearsto impose a twin obligation upon the Courtwhile dealing with an application forsummoning the production of documents.These obligations are: (1)that the Courtconsiders the production of the original asnecessary; and (2) that an application fora certified copy had been duly madebut hasnot been granted.

21. Since Section 4 of the Bankers’ BooksEvidence Act, 1891makes a certified copyof any entry in a Bankers’ Books asprimafacie evidence of the existence of suchan entry, it is contended bythe learnedsenior counsel for the petitioner that the1st respondentought to have applied for acertified copy of the records to the bankandthat only upon the failure of the bank tofurnish the certifiedcopy, the 1st respondentcould have sought the production oftheoriginal.

22. In my considered opinion, the abovecontention of the learned senior counsel isfallacious. Rule 129 of the Civil RulesofPractice deals with production of recordsin the custody of a Public Officer other thana Court. The expression “Public Officer”isnot defined in the Civil Rules of Practice.However, Rule 2 (n) of the Civil Rules ofPractice makes it clear that “all otherexpressionsused in the Civil Rules ofPractice shall have the respective meaningsprescribed by the Code or the GeneralClauses Act, 1897.”

23. The expression “Public Officer” is notdefined in the General Clauses Act, 1897.But, Section 2 (17) of the Code of Civil

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M/s.Lokesh Foundaries Pvt.Ltd. Vs. M/s.Varun Motors & Ors., 129Procedure defines the expression “PublicOfficer” as follows: “Public officer" meansa person falling under any of the followingdescriptions, namely:-

(a) every Judge;(b) every member of an All-India Service;(c) every commissioned or gazetted officerin the military, naval or air forces of theUnion while serving under the Government.(d) every officer of a Court of Justice whoseduty it is, as such officer, to investigateor report on any matter of law or fact, orto make, authenticate or keep anydocument, or to take charge or dispose ofany property, or to execute any judicialprocess, or to administer any oath, or tointerpret, or to preserve order, in the court,and every person especially authorized bya Court of Justice to perform any of suchduties:(e) every person who holds and office byvirtue of which he is empowered to placeor keep any person in confinement;(f) every officer of the Government whoseduty it is, as such officer, to prevent offencesto give information of offences, to bringoffenders to justice, or to protect the publichealth, safety or convenience;(g) every officer whose duty it is, as suchofficer, to take, receive, keep or expend anyproperty on behalf of the Government, orto make any survey, assessment or contracton behalf of the Government, or to executeany revenue process, or to investigate, orto report on, any matter affecting thepecuniary interests of the Government, orto make, authenticate or keep any documentrelating to the pecuniary interests of theGovernment, or to prevent the infraction of

any law for the protection of the pecuniaryinterests of the Government; and(h) every officer in the service or pay of theGovernment, or remunerated by fees orcommission for the performance of anypublic duty”

24. The Manager of a Bank, in whosecustody the correspondence relating to onetime proposals lie, will not come within anyone of the clauses (a) to (h) of Section 2(17) of the Code of Civil Procedure, so asto make him a Public Officer within themeaning of Rule 129 of the Civil Rules ofPractice. 25. It must be remembered thatfor the purpose of the Indian Penal Code,the Prevention of Corruption Act and variousother enactments including the BankingRegulation Act, a banker may be a “Publicservant”. The expressions “Public servant”and “Public officer” are not to be cocktailedwith each other. The definition of theexpression “Public servant” available in thePrevention of Corruption Act, Indian PenalCode etc., cannot be invoked while givinga meaning to the expression “public officer”,appearing in Rule 129 of the Civil Rulesof Practice, especially in view of Rule 2(n) of the Civil Rules of Practice read withsection 2(17) of the Code. Once it is clearthat the Manager of the bank having custodyof the correspondence relating to one timesettlement proposal of a borrower, is nota public officer, within the meaning of Rule129 read with rule 2 (n) and section 2(17)of CPC, then it follows as a corollary thatrule 129 itself will have no application tothe petition for summoning the productionof a document in the custody of a BankManager.

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130 LAW SUMMARY (Hyd.) 2017(3)26. The entire scheme of Rule 129 of theCivil Rules of Practice makes it clear thatthe same is primarily intended to be appliedto the officers of the RegistrationDepartment, Revenue Department,Legislative Assemblies and LegislativeCouncils and other Governmentdepartments.

27. A more fundamental distinction betweenthe certified copies of public documentsdealt with by Rule 129 and certified copiesdealt with by Bankers’ Books Evidence Act,1891 has to be kept in mind. Whenevera certified copy of a public document isissued by a Registrar of Assurances or aTahsildar, the officer issuing the samemerely certifies the copy to be a true copyof the original. The public authorities, whoissue certified copies of documents, donot certify that the contents of thosedocuments are beyond question. Theymerely certify that the copy issued by themis a verbatim reproduction of the original.

28. But a certified copy issued by a bankunder the Bankers’ Books Evidence Act,actually certifies the correctness of theentries that are reproduced in the copy. Theexpression “certified copy” is defined inSection 2 (8) of the Bankers’ BooksEvidence Act, 1891 as follows:

“certified copy” means when thebooks of a bank,— [2A. Conditionsin the printout. — A printout of entryor a copy of printout referred to insub-section (8) of section 2 shall beaccompanied by the following,namely:— (a) a certificate to the effect

that it is a printout of such entry ora copy of such printout by theprincipal accountant or branchmanager; and (b) a certificate by aperson in-charge of computer systemcontaining a brief description of thecomputer system and the particularsof— (A) the safeguards adopted bythe system to ensure that data isentered or any other operationperformed only by authorisedpersons; (B) the safeguards adoptedto prevent and detect unauthorisedchange of data; (C) the safeguardsavailable to retrieve data that is lostdue to systemic failure or any otherreasons; (D) the manner in whichdata is transferred from the systemto removable media like floppies,discs, tapes or other electromagneticdata storage devices; (E) the modeof verification in order to ensure thatdata has been accurately transferredto such removable media; (F) themode of identification of such datastorage devices; (G) thearrangements for the storage andcustody of such storage devices; (H)the safeguards to prevent and detectany tampering with the system; and(I) any other factor which will vouchfor the integrity and accuracy of thesystem. (c) a further certificate fromthe person in-charge of the computersystem to the effect that to the bestof his knowledge and belief, suchcomputer system operated properlyat the material time, he was providedwith all the relevant data and theprintout in question represents

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M/s.Lokesh Foundaries Pvt.Ltd. Vs. M/s.Varun Motors & Ors., 131correctly, or is appropriately derivedfrom, the relevant data.

29. A careful look at the definition portionextracted above would show that whenevera certified copy is issued by a bank, thesame is supposed to contain a footnoteto the effect (1) that it is a true copy ofsuch entry; (2) that such entry is containedin one of the ordinary books of the bankand was made in the usual and ordinarycourse of business; and (3) that such bookis still in the custody of the bank.

30. Another important distinction betweenthe certified copies of documents kept inthe custody of a Public Officer other thana Court and the certified copies of the entriesmade in the books of a banker is that inthe case of the former, the same may relatea document to which the Public Officer maynot be a party. A SubRegistrar of Assuranceis never a party to any sale deed. But heis supposed to keep a record of thetransactions and the certified copies issuedby him are of documents to which he isnot a party. But when a banker issues acertified copy, it is in relation to an entryto which the bank is a party. Therefore, itis clear that Rule 129 (3) has no relevanceto the documents sought for by the 1strespondent in his case from the 2ndrespondent-bank. But unfortunately, the firstrespondent indicated their application asone filed under Rule 129. However, it issettled law that the quoting of the wrongprovision, will not divest the court of itspower to treat the application under thecorrect provision. In any case, this courthas already directed in Para 12 of its orderin C.R.P.No.2192 of 2015 to treat the petition

as one filed under the correct provision.Therefore, my conclusion that Rue 129 ofthe Civil Rules of Practice has no applicationto the petition filed by the first respondent,will not entitle the petitioner to succeed bydefault.

31. In fact, Order XVI Rule 6 of the Codeempowers the court to summon “any person”to produce a document without beingsummoned to give evidence. The secondpart of Order XVI, Rule 6 states that anyperson summoned merely to produce adocument shall be deemed to have compliedwith the summons once he has caused thedocument to be produced. The secondrespondent has done this and the provisionsof Order XVI Rule 6 have worked themselvesout in this case. Therefore, the objectionsraised by the petitioner cannot but beconstrued only as a dilatory tactic or asa ruse to prevent the truth about theexecution of the suit agreement of salecoming out. Hence the 3rd contention isalso rejected. Contention No.4:32. The fourth contention of the learnedsenior counsel for the petitioner is that whenthe bank itself is a party to the proceeding,it is not correct on the part of the Courtbelow to summon the production of thedocuments in their possession.

33. But, I do not think that the petitioneris entitled to raise this contention. OrderXVI, Rule 6 uses the expression “anyperson”. The rule that a party to a proceedingcannot be compelled to produce a documentin their possession, is intended to protectevery party to a litigation against beingcompelled to produce any incriminatingmaterial against themselves. But in this

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case the documents sought, are notincriminating material against the 2ndrespondent-bank. In fact, no relief is soughtby the plaintiff as against the Bank in thesuit. The Bank is only a formal party tothe suit. This is why, the Bank has notcome up with any revision. Therefore, thepetitioner cannot raise this contention.

34. One last contention raised by the learnedsenior counsel for the petitioner is that anapplication for summoning the productionof a document should be devoid of vaguenessand that it should describe the documentsought to be summoned with precision andaccuracy. Since the petition filed by the1st respondent contained a reference to“correspondence” without specifying thedate, nature etc., of the same, it iscontended by the learned senior counselfor the petitioner that the application oughtnot to have been allowed.

35. But the above contention does not meritacceptance. The party, who filed theapplication, knew what they wanted. The2nd respondent against whom the orderhas been passed also understood whatwas summoned and they have producedthe summoned documents. If at all any onecould have gone to Court and objected toa vague prayer to summon the productionof unspecified documents, it was the 2nddefendant. But the 2nd defendant hasactually produced the documentssummoned by the Court. Hence, thisobjection is also to be overruled.

36. As rightly contended by Mr.VedulaVenkataramana, the learned Senior Counselfor the first respondent herein (plaintiff), the

defence taken by the petitioner/firstdefendant in the suit is one of total denial.According to him, it is a case of attemptingto hide huge a pumpkin in a handful ofgrains. As per the written statement of thepetitioner, the suit agreement of sale wasa fabricated document, prepared on blanksigned stamp papers given by the petitionerat the time when the plaintiff depositedRs.31 lakhs with the Bank in a ‘no lien’account for considering the one timeproposal. In the light of such a stand takenin the written statement, the firstrespondent/plaintiff was right in seeking the file relatingto the OTSproposal and thecorrespondence, as the same would bringout the truth about the suit agreement ofsale. After all, the endeavour of every courtshould be to find out the truth, to enablethe court to render justice. The summoningof the documents in question, in muconsidered opinion, would certainly enablethe court to arrive at the truth and I do notknow whether the petitioner is afraid offacing it. Therefore, I find absolutely noreasons to interfere with the order of thecourt below.

37. In fine, I find no merits in the revisionpetition and hence, it is dismissed. As asequel thereto, miscellaneous petitions, ifany, pending shall stand closed.

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2017(3) L.S. (Madras) 27

IN THE HIGH COURT OF MADRAS(MADURAI BENCH)

Present:The Hon’ble Mr. Justice

T.Ravindran

K.Nainar Chettiar& Ors., ..Appellants

Vs.Rusabali & Ors., ..Respondents

CIVIL PROCEDURE CODE,Sec.146and 151 and Order – IX, Rule 13 – CivilRevision – Application preferred bypetitioners was not entertained in theTrial court to set aside ex partepreliminary decree and ex parte finaldecree passed in the suit proceedings.

Petitioners purchased one of theitems of suit scheduled propertiespendente lite – Petitioner contends thatthe parties of the suit in collusion,committed fraud by not bringing to theknowledge of the court aboutalienations made pendente lite.

Held – It is not established bypetitioners as to how they couldmaintain a single application to setaside both ex parte preliminary decreeand ex parte final decree passed andpetitioners have not stated as to whenthey came to know about the same –Petitioners should have movednecessary applications to condonedelay in filing application to set asideCRP(MD)No.45/08 Dt:12-9-2017

ex parte decrees passed in the suit –Though a transferee pendente lite isentitled to maintain application underOrder IX Rule 13 of C.P.C., to set asideex parte decrees passed against histransferor but the application preferredby petitioners had not conformed therequirements of law – Application laidby petitioners is not maintainable – Civilrevision petition is dismissed.

Mr.M.P.Senthil, Advocate Petitioners.Mr.S.Sivathilakar for R1 & R2 Mr.G.PrabhuRajadurai for R3 & R4, AdvocateRespondents.

O R D E R

In this civil revision petition, the fair anddecreetal orders, dated 05.12.2007, passedin unnumbered I.A.No......of 2007 inO.S.No.251 of 1994, on the file of the SubCourt, Thoothukudi, are being challenged.

2. It is found that the respondents 1 and2 are the plaintiffs and the respondents 3and 4 are the defendant in the suit inO.S.No.251 of 1994. It is further found thesaid suit has been laid for partition. It isfurther found that the said suit had beencontested by the defendants by filing awritten statement. However, it is found thatin culmination, an ex parte preliminarydecree had come to be passed in the suiton 11.08.2003 and thereafter, it is foundthat the plaintiffs preferred I.A.No.194 of2004 for passing a final decree in termsof the preliminary decree and accordingly,it is seen that an ex parte final decree hadalso come to be passed in the suit on30.09.2005. It is further seen that the

K.Nainar Chettiar & Ors., Vs. Rusabali & Ors., 27

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28 LAW SUMMARY (Madras) 2017(3)

plaintiffs had levied execution proceedingsin E.P.No.43 of 2006 for recovery ofpossession of the properties allotted to themby way of the final decree passed in thesuit. While the matter stood thus, it isfound that the petitioners, who are thirdparties to the proceedings, had preferredan application, under Order IX Rule 13 r/w Sections 146 and 151 of the Code ofCivil Procedure, mainly contending that therespondents 3 and 4 / defendants, duringthe pendency of the suit, have alienatedthe first item of the third schedule propertiesto one Subramanian Chettiar on 22.06.2001and accordingly, handed over the possessionof the said property to the purchaserSubramanian Chettiar and thereafter,according to the petitioners, they hadpurchased the above said property for avalid consideration, on 05.02.2007 fromSubramanian Chettiar and accordingly, hehad delivered the possession of the sameto them and inasmuch as the respondents3 and 4 / defendants knew very well aboutthe conveyance of the title of the saidproperty to Subramanian Chettiar and inturn, Subramanian Chettiar, having conveyedthe same in favour of the petitioners, therespondents 3 and 4 should have broughtto the notice of the Court about the abovesaid alienations and accordingly, soughtpermission of the Court to implead thepetitioners in the suit proceedings, however,they had deliberately failed to take stepsto implead the petitioners and on the otherhand, according to the petitioners, therespondents 3 and 4 / defendants, incollusion with the respondents 1 and 2 /plaintiffs schemed to knock away theproperties inclusive of the property, whichthe petitioners had purchased as above

stated and in such view of the matter, itis stated that on account of the fraudcommitted by the parties involved in thesuit proceedings and inasmuch as therebythe interest of the petitioners had beenseriously affected and the decrees seemto have been obtained by the plaintiffs incollusion with the defendants, withoutbringing to the knowledge of the Court aboutthe alienations made pendente lite, it is thecase of the petitioners that a fraud hasbeen committed by the plaintiffs and thedefendants and hence, according to them,the ex parte preliminary and final decreesin the suit are liable to be set aside andhence, the petitioners had come comeforward with the above said application,under Order IX Rule 13 r/w Sections 146and 151 of the Code of Civil Procedure.

3. The above said application of thepetitioners was returned by the Courtconcerned as the final decree had beenpassed in the suit on 30.09.2005 and furtheras the petitioners are not parties in the suitand to state how the application ismaintainable. The petitioners had re-presented the application contending thatSection 151 C.P.C., can be invoked to servethe ends of justice and also to prevent theabuse of process of the Court and inasmuchas they had purchased one of the itemsof the suit schedule properties as abovestated pendente lite and after sale, as thedefendants remained ex parte andconsequently, ex parte preliminary and finaldecrees had come to be passed and asthe decrees have come to be passed incollusion of the plaintiffs and the defendantsand as the Commissioner had also failedto bring it to the notice of the Court about

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K.Nainar Chettiar & Ors., Vs. Rusabali & Ors., 29the petitioners' possession at the time ofpassing final decree, the Court had alsobeen misled in the proceedings and hence,as fraud has been committed by the partiesto the suit, according to the petitioners, theapplication preferred by them is maintainableas per certain decisions relied upon bythem.

4. In view of the above said resistance putforth by the petitioners to the order of returnmade by the Court, it is found that the Courtfinally noting that the suit having been filedin the year 1994 and the preliminary decreehaving been passed on 11.08.2003 and thefinal decree having been passed on30.09.2005 and in such view of the matter,inasmuch as the petitioners are not partiesin the proceedings, held that the applicationlaid by the petitioners is not maintainableand the decisions relied upon by thepetitioners are not applicable to the factsand circumstances and acceptablereasonings have not been given that thedecrees had been passed in the suit onaccount of the fraud and collusion and whenthe final decree had come to be passedon the basis of the Commissioner's reportand further there is a delay of four yearsin the filing of the application and as theprovisions of law relied upon the petitionersare found to be not applicable, rejected theapplication. Impugning the same, thepresent civil revision petition has beenpreferred.

5. It is the contention of the learned counselfor the petitioners that when it is the caseof the petitioners that they had purchasedone of the items of the suit scheduleproperties pendente lite as above stated

and when the said fact is known to thedefendants, the defendants owe a duty tobring the same to the knowledge of theCourt and invite the Court's permission toimplead the petitioners as parties to thesuit proceedings and on the other hand,the defendants have suppressed the sameand further as the defendants and theplaintiffs have in collusion obtained thedecrees passed in the suit as above statedand by way of the above said decrees, thepetitioners having been put to loss and onlyrecently, the petitioners have come to knowabout the above said developments, theyhave been necessitated to set aside theex parte decree passed in the suit. As tothe determination of the Court below thatthe application is not maintainable, it is thecontention of the learned counsel for thepetitioners that a combined reading of OrderIX Rule 13 and Order XXII Rule 10 andSection 146 C.P.C., would go to show thatthe petitioners having purchased one of theitems of the suit properties from therespondents 3 and 4 / defendants, thepetitioners in turn should be held to havederived title of the property concerned fromthe said defendants and accordingly, thedefendants having remained ex parte andwhen according to the petitioners, they hadremained ex parte in furtherance of thecollusion made with the plaintiffs and thereby,the defendants having failed to bring it tothe knowledge of the Court about thepurchase of the property concerned by thepetitioners and consequently, committedthe fraud on the Court, it is the case ofthe petitioners that in the light of the decisionof the Apex Court reported in (2004) 2 SCC601 (Raj Kumar vs. Sardari Lal and others),their application under Order IX Rule 13 r/

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30 LAW SUMMARY (Madras) 2017(3)w Section 146 and 151 C.P.C., ismaintainable and accordingly, prayed to setaside the impugned order and to the directthe Court below to take the application onfile and dispose of the same on merits andin accordance with law.

6. Countering to the above submissions,the learned counsel for the respondentscontended that the petitioners being notparties to the suit proceedings are notentitled to maintain the application underOrder IX Rule 13 C.P.C., to set aside thedecrees passed in the suit and further, thereis no material placed to hold that the plaintiffsand the defendants had acted in collusionand thereby, committed a fraud upon theCourt and when, according to the petitioners,they had purchased one of the items ofthe suit properties pendente lite, it iscontended that the petitioners being thepurchasers pendente lite whatever thedecree that would be passed in the suitwould equally bind upon them and inasmuchas the petitioners have also not preferredthe application in time and as the petitionershave not established their entitlement tomaintain the application, it is stated thatthe Court below has rightly rejected theapplication and hence, the impugned orderdoes not call for any interference.

7. No doubt, the petitioners are third partiesto the suit proceedings. However, it is thecase of the petitioners that pendente litetheir vendor and subsequently, thepetitioners had purchased one of the itemsof the suit properties from the defendants.Therefore, according to them, the defendantsbeing aware of the same should haveapprised to the Court the above said

developments and the defendants havesuppressed the same and remained ex parteand not contesting the suit laid by theplaintiffs, the inevitable conclusion wouldbe that the decrees had been obtained insuit only pursuant to the collusion madebetween the plaintiffs and the defendantsand in such view of the matter, on accountof the purchase of one of the items of thesuit properties, the passing of the decreesin the suit would materially affect the interestof the petitioners in respect of the purchaseditem and hence, they had been necessitatedto set aside the ex parte decree passedin the suit. In this connection, strongreliance is placed upon the decision of theApex Court as cited above. A perusal ofthe said decision would go to show thatthe Apex Court, on a combined reading ofSection 146, Order XXII Rule 10 and OrderIX Rule 13 C.P.C., finally concluded thata lis pendens transferee though not broughton record under Order XXII Rule 10 C.P.C.,is entitled to move an application underOrder IX Rule 13 to set aside the decreespassed against his transferrer / defendantin the suit. Therefore, it is found that assuch the petitioners' case being that theyare the purchasers pendente lite, they areentitled to maintain the application underOrder IX Rule 13 C.P.C., as per the abovesaid decision of the Apex Court and in suchview of the matter, according to them, theorder of the Court below in rejecting theirapplication is not sustainable in the eyesof law. Further, the learned counsel for thepetitioners also relied upon the decisionreported in 2013 (2) CTC 104 [ThomsonPress (India) Ltd., vs. Nanak Builders &Investors P. Ltd., and another].

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K.Nainar Chettiar & Ors., Vs. Rusabali & Ors., 318. In the light of the above cited decision,it is found that on a combined reading ofthe provisions of law above stated, it isseen that a transferee pendente lite wouldbe entitled to maintain the application underOrder IX Rule 13 C.P.C., to set aside theex parte decrees passed against theirtransferrer in the suit proceedings. Therefore,prima facie it is found that the transfereependente lite is entitled to maintain theapplication under Order IX Rule 13 C.P.C.

9. Now, considering the facts andcircumstances of the present case, it isfound that the above said application hasbeen preferred by the petitioners to setaside the ex parte preliminary decree andex parte final decree passed in the suitproceedings. It is found that the preliminarydecree had come to be passed on11.08.2003 and the final decree had cometo be passed on 30.09.2005. In such viewof the matter, when the decrees above statedhave been passed on different dates andin different situations, considering the factsand circumstances of the case prevailingthen, it is not established by the petitionersas to how they could maintain a singleapplication to set aside the both ex partepreliminary decree and ex parte final decreepassed in the suit. When the cause ofaction for setting aside the said decreesare found to be different, it is seen thaton the above score, the single applicationlaid by the petitioners to set aside theabove said decrees passed in the suit isnot maintainable.

10. Now, according to the petitioners, asseen from the affidavit filed by them insupport of the application, they had come

to learn that the plaintiffs have obtained anex parte preliminary decree on 11.08.2003and in consequence, they have got an exparte final decree in the suit proceedings.However, it is not stated as to when thepetitioners have come to know about thepassing of the ex parte preliminary decreeand the ex parte final decree in the suitproceedings. Very vaguely, they have statedthat they have come to learn about thesame. Subsequently, it is also stated bythem that only on 12.11.2007 when theAmin from the Court demanded the vacantpossession from them, they had come toknow about the suit proceedings. Even withreference to the same, there is no materialworthwhile acceptance forthcoming.Therefore, it is found that the petitionershaving come forward with an application toset aside the decrees passed in the suiton different dates and the above saiddecrees having come to be passed ondifferent situations, it is found that whenfurther the petitioners have not establishedprima facie that they had come to knowabout the decrees passed in the suit onlyon 12.11.2007 as stated by them and withreference to their knowledge about thepassing of the decrees in the suit, the pleain the application is very vague and theCourt below also noted that the applicationshave not been preferred in time and thepetitioners have come forward with theapplication nearly four years after the passingof the preliminary decree and two yearsafter the passing of the final decree, it isfound that the application laid by thepetitioners simpliciter for setting aside theex parte decrees without necessaryapplications to condone the delay in filingthe same is not maintainable.

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32 LAW SUMMARY (Madras) 2017(3)11. As seen from the contentions of thepetitioners, it is found that the petitionershave claimed the right to set aside the exparte decrees passed in the suit, they beingtransferees pendente lite, on the footingthat they had derived the right to the propertypurchased by them from the defendantsand thereby claim to have right to maintainthe application by stepping into the shoesof the defendants. When it is not the caseof the petitioners that the defendants haveno knowledge about the decrees passedin the suit and the inevitable conclusionbeing that the defendants have knowledgeabout the passing of the decrees in thesuit and when the petitioners claim rightto maintain the application only through thedefendants, it is found that on the aboveground also, the petitioners should havemoved necessary applications to condonethe delay in filing the application to setaside the ex parte decrees passed in thesuit. It is, thus, found that when obviouslythere is enormous delay in the filing of theapplication to set aside the decrees passedin the suit and when no requisite applicationshaving been preferred by the petitioners tocondone the delay, it is found that on thatscore also the application preferred by thepetitioners is not maintainable.

12. In view of the foregoing reasons, thoughit is found that a transferee pendente liteis entitled to maintain the application underOrder IX Rule 13 C.P.C., to set aside exparte decrees passed against his transferreras per the decision of the Apex Court, asthe application preferred by the petitionershad not conformed to the requirements oflaw, as above discussed, in my consideredopinion, the application laid by the

petitioners is not maintainable and on theabove said grounds, it is found that theapplication cannot be entertained. Thoughthis Court has come to the conclusion thatthe application laid by the petitioners is notmaintainable on different reasonings,inasmuch as the outcome of the impugnedorder of the Court below is the rejectionof the application laid by the petitioner asnot maintainable, for the reasonsaforestated, the impugned order of the Courtbelow is confirmed.

13. Resultantly, the civil revision petition isdismissed with costs. Consequently,connected miscellaneous petition is closed.

--X--

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2017 (3) L.S. 25 (S.C)

IN THE SUPREME COURT OF INDIA

NEW DELHI

Present:

The Hon'ble Mr.Chief Justice of India

Dipak Misra

The Hon'ble Mr.Justice

A.M.Khanwilkar &

The Hon'ble Dr.Justice

D.Y.Chandrachud

Parbatbhai Aahir @Parbatbhai BhimsnhbhaiKarmur & Ors., ..Appellants

Vs.State of Gujarat &Anr., ..Respondents

CRIMINAL PROCEDURE CODE,Sec.482 – Appellants sought thequashing of a FIR registered againstthem – Complainant/ Respondent wasapproached by appellants to purchasehis land – When respondent followedup for payment of balance amount fromappellants, he was threatened of aforcible transfer of the land.

Appellants advanced a pleabefore High Court for quashing of FIRon the ground that they amicably settleddispute with complainant, and evencomplainant had also filed an affidavitto that effect – In the view of HighCourt, it was not in the interest of societyat large to accept settlement and quash

Crl.A.No.1723/17 Date:4-10-2017

the FIR - Prayer to quash FIR has beenrejected.

Held – In forming an opinionwhether a criminal proceeding orcomplaint should be quashed inexercise of jurisdiction under section482 of Cr.P.C, by High Court, revolvesultimately on facts and circumstancesof each case and nature of offencecommitted and High Court must evaluatewhether ends of justice would justifythe exercise of inherent power – Theremay be criminal cases which havepredominant element of civil disputeand they stand on different footing inso far as exercise of inherent powerto quash is concerned – Instant caseinvolves allegations of extortion, forgeryand fabrication of documents – SupremeCourt agrees with the view of High Court– Criminal appeal stands dismissed.

J U D G M E N T(per the Hon’ble Dr.Justice

D.Y.Chandrachud)

Leave granted.

2 By its judgment dated 25 November 2016,the High Court of Gujarat dismissed anapplication under Section 482 of the Codeof Criminal Procedure, 1973. The appellantssought the quashing of a First InformationReport registered against them on 18 June2016 with the City ‘C’ Division Police Station,District Jamnagar, Gujarat for offencespunishable under Sections 384, 467, 468,471, 120-B and 506(2) of the Penal Code.The second respondent is the complainant.

Parbatbhai Aahir @ Parbatbhai Bhimsnhbhai Karmur& Ors.,Vs.State of Gujarat 25

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3 In his complaint dated 18 June 2016, thesecond respondent stated that certain landadmeasuring 17 vigha comprised in survey1408 at Panakhan Gokulnagar in Jamnagarcity was his ancestral agricultural land. Theland was converted to non-agricultural useon 21 June 1995 and 5 January 2000pursuant to orders of the District Collector.One hundred and three plots were carvedout of the land. Amongst them, plots 45to 56 admeasuring 32,696 sq.ft. were inthe joint names of six brothers and a sister(represented by the complainant). Accordingto the complainant, a broker by the nameof Bachhubhai Veljibhai Nanda approachedhim with Parbatbhai Ahir, the first appellantstating that he desired to purchase theland. On the next day, the first appellantapproached the complainant with his partnerHasmukhbhai Patel (the third appellant) topurchase the land. The complainant wasrequested to provide a photocopy of the layout plan of the plot, which he did. On thefollowing day the first appellant is allegedto have gone to the house of the complainantwith the second and the third appellantsat which point in time, parties agreed thatthe land would be sold at the rate of Rs4,221 per sq.ft. and a deal was struck fora consideration of Rs.1,13,58,711/- out ofwhich an amount of Rs 11 lakhs was givenin cash to the complainant for plot no.56.The complainant’s case is that while thediscussion was on, he was requested bythe second and the third appellants thatsince the power of attorney was old andunreadable all the plot holders should givetheir passport size photographs.

Accordingly, a document was reduced towriting by which it was agreed that the saletransaction for plot no.56 would becompleted within two months against fullpayment. According to the complainant,when he demanded the remaining paymentfor the plot from the second and thirdappellants, the second appellant providedhim seven cheques each in the amount ofRs 6 lakhs in the name of the six brothers(one brother being given two cheques).Thereafter when the complainant followedup for the payment of the remaining amountwith the purchasers, the balance was notpaid and, on the contrary, the complainantwas threatened of a forcible transfer of theland. According to the complainant, whenhe visited the office of the Sub-registrarabout three days before lodging thecomplaint, it came to his knowledge thata sale deed has been registered not onlyin respect of the plot in question (whichwas agreed to be sold) but also in respectof plot nos.45 to 55 on 27 January 2016.It was then that the complainant realisedthat the purchaser in the sale deed wasshown as the fourth appellant, JayeshArvindbhai Patel, and the name of theseventh appellant, Jitudan NankudanGadhavi, resident of Payalnagar society,Naroda, Ahmedabad was shown as theholder of a power of attorney. The witnessesto the registered sale deed were the fifthappellant, Rabari Hiteshbhai and the sixthappellant, Patel Indravaden Dineshbhai.

4 The complaint came to be lodged on thecomplainant having realised that the powerof attorney in the name of his siblings had

26 LAW SUMMARY (S.C.) 2017(3)

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been forged. The complainant stated thatneither he nor any of his siblings had givena power of attorney in favour of the seventhappellant. According to the complainant,neither the non-judicial stamp dated 25January 2016 in the amount of Rs10,30,000/- nor the judicial stamp dated 27January 2016 has been purchased by him.In fact, according to the complainant, it wasthe fourth appellant who had purchased thejudicial stamp dated 27 January 2016. 5According to the complaint, plots no.45 to55 admeasuring 30,005 sq.ft. are valued atRs 12.50 crores. It has been alleged thata conspiracy was hatched by the appellantsand by the other co-accused resulting intothe transfer of valuable land belonging tothe complainant and his siblings, on thebasis of forged documents.

6 The High Court noted that the fourthappellant had moved Special CriminalApplication no.4538 of 2016 which had beenrejected by the coordinate bench of theHigh Court on 3 August 2016. While rejectingthe earlier application under Section 482,the High Court had observed thus:

“19. Primary details revealed thecomplaint had led this Court examinethe papers of the investigation. Theevidence so far collected prima faciereveal the involvement of thepetitioner.This Court also could noticethat it is a case where under thepretext of buying only a particularPlot No.56 from the complainant andhis family members, the power ofattorney has been forged usurping

nearly 10 other plots which valuenearly 11 crores and odd by allegedlyconniving with each other, andtherefore, the payment of Rs 42 lakhsby the cheques to the complainantin relation to one of the plots alsowould pale into insignificance. This,by no means, even at a prima facielevel, can be said to be a civil dispute,given a colour of criminality. It wouldbe in the interest of both the sidesfor this Court to either, at this stagenot to make a roving inquiry or divulgeanything which may affect the ongoinginvestigation. Suffice it to note that,the petition does not deserved to beentertained an the same standsrejected.” Before the High Court, theplea for quashing the First InformationReport was advanced on the groundthat the appellants had amicablysettled the dispute with thecomplainant. The complainant hadalso filed an affidavit to thateffect.

7 On behalf of the prosecution, the PublicProsecutor opposed the application forquashing on two grounds. First - theappellants were absconding and warrantshad been issued against them under Section70 of the Code of Criminal Procedure, 1973.Second, the appellants had criminalantecedents, the details of which arecontained in the following chart submittedbefore the High Court:


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1 Parbatbhai Bhimsinhbhai Karmur a. City “A” Division Jamnagar P.1 CR No 1-251/2010

2 Ramde Bhikha Nanadaniya P.2 a. City “A”Division Jamnagar Cr.No. 1-135/2016 2

b.City “A” Division Jamnagar CR No.1-105/2016

c.City “A” Division Jamnagar 2 CR No.1-251/2010

3 Hasmukh Hansrajbhai Patel a. Gandhinagar M-Case No.1/2014 P.3

b. City “A” Division Jamnagar CR No.1-105/2016

4 Indravadan Dineshbhai Patel a. City “A: Division Jamnagar P.6 CR No.1-105/2016

5 Jitendra Somabhai Modi a. City “A” Division Jamnagar P.7 CR No.1-105/2016

b. Odhav Police Station CR No.I-180/2015

6 Vishnu @ Toto Rabari a. Gandhinagar M-Case No.1/2014

b. City “A: Division Jamnagar CR No.I-105/2016

The High Court observed that it had beengiven “a fair idea” about the modus operandiadopted by the appellants for grabbing theland, in the course of which they had openedbogus bank accounts. The High Court held

that the case involves extortion, forgery andconspiracy and all the appellants have actedas a team. Hence, in the view of the HighCourt, it was not in the interest of societyat large to accept the settlement and quash

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the FIR. The High Court held that the chargesare of a serious nature and the activitiesof the appellants render them a potentialthreat to society. On this ground, the prayerto quash the First Information Report hasbeen rejected.

8 On behalf of the appellants, reliance hasbeen placed on the decisions rendered bythis Court in GIAN SINGH V STATE OFPUNJAB (2012) 10 SCC 303 AND INNARINDER SINGH V STATE OF PUNJAB(2014) 6 SCC 466. Learned counselsubmitted that the dispute between thecomplainant and the appellants arose froma transaction for the sale of land. It wasurged that the dispute is essentially of acivil nature and since parties have agreedto an amicable settlement, the propercourse for the High Court would have beento quash the FIR in exercise of thejurisdiction conferred by Section 482 of theCode of Criminal Procedure, 1973.

9 On the other hand, learned counselappearing on behalf of the state

has supported the judgment of the HighCourt. Learned counsel emphasised thecircumstances which weighed with the HighCourt, including (i) the seriousness of theallegations; (ii) the conduct of the appellantswho were absconding; and (iii) the criminalantecedents of the appellants. Hence, itwas urged that the appellants were notentitled to the relief of quashing the FIRmerely because they had entered into asettlement with the complainant. 10 Section482 is prefaced with an overriding provision.The statute saves the inherent power of theHigh Court, as a superior court, to make

such orders as are necessary (i) to preventan abuse of the process of any court; or(ii) otherwise to secure the ends of justice.In Gian Singh (supra) a bench of threelearned Judges of this Court adverted tothe body of precedent on the subject andlaid down guiding principles which the HighCourt should consider in determining as towhether to quash an FIR or complaint inthe exercise of the inherent jurisdiction.The considerations which must weigh withthe High Court are:

“61 …the power of the High Courtin quashing a criminal proceeding orFIR or complaint in exercise of itsinherent jurisdiction is distinct anddifferent from the power given to acriminal court for compounding theoffences under Section 320 of theCode. Inherent power is of wideplenitude with no statutory limitationbut it has to be exercised in accordwith the guideline engrafted in suchpower viz.: (i) to secure the ends ofjustice, or (ii) to prevent abuse of theprocess of any court. In what casespower to quash the criminalproceeding or complaint or FIR maybe exercised where the offender andthe victim have settled their disputewould depend on the facts andcircumstances of each case and nocategory can be prescribed. However,before exercise of such power, theHigh Court must have due regard tothe nature and gravity of the crime.Heinous and serious offences ofmental depravity or offences likemurder, rape, dacoity, etc. cannot befittingly quashed even though the


74

victim or victim’s family and theoffender have settled the dispute.Such offences are not private innature and have a serious impact onsociety.

Similarly, any compromise between thevictim and the offender in relation to theoffences under special statutes like thePrevention of Corruption Act or the offencescommitted by public servants while workingin that capacity, etc; cannot provide for anybasis for quashing criminal proceedingsinvolving such offences. But the criminalcases having overwhelmingly andpredominatingly civil flavour stand on adifferent footing for the purposes of quashing,particularly the offences arising fromcommercial, financial, mercantile, civil,partnership or such like transactions or theoffences arising out of matrimony relatingto dowry, etc. or the family disputes wherethe wrong is basically private or personalin nature and the parties have resolved theirentire dispute. In this category of cases,the High Court may quash the criminalproceedings if in its view, because of thecompromise between the offender and thevictim, the possibility of conviction is remoteand bleak and continuation of the criminalcase would put the accused to greatoppression and prejudice and extremeinjustice would be caused to him by notquashing the criminal case despite full andcomplete settlement and compromise withthe victim. In other words, the High Courtmust consider whether it would be unfairor contrary to the interest of justice tocontinue with the criminal proceeding orcontinuation of the criminal proceeding wouldtantamount to abuse of process of law

despite settlement and compromisebetween the victim and the wrongdoer andwhether to secure the ends of justice, itis appropriate that the criminal case is putto an end and if the answer to the abovequestion(s) is in the affirmative, the HighCourt shall be well within its jurisdiction toquash the criminal proceeding.” 11 InNarinder Singh (supra), Dr Justice A K Sikri,speaking for a bench of two learned Judgesof this Court observed that in respect ofoffences against society, it is the duty ofthe state to punish the offender. Inconsequence, deterrence provides arationale for punishing the offender. Hence,even when there is a settlement, the viewof the offender and victim will not prevailsince it is in the interest of society thatthe offender should be punished to deterothers from committing a similar crime. Onthe other hand, there may be offences fallingin the category where the correctionalobjective of criminal law would have to begiven more weightage than the theory ofdeterrence. In such a case, the court maybe of the opinion that a settlement betweenthe parties would lead to better relationsbetween them and would resolve a festeringprivate dispute. The court observed that thetiming of a settlement is of significance indetermining whether the jurisdiction underSection 482 should be exercised:

“29.7…Those cases where thesettlement is arrived at immediatelyafter the alleged commission ofoffence and the matter is still underinvestigation, the High Court may beliberal in accepting the settlement toquash the criminal proceedings/investigation.


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It is because of the reason that at thisstage the investigation is still on and eventhe charge-sheet has not been filed.Likewise, those cases where the chargeis framed but the evidence is yet to startor the evidence is still at infancy stage,the High Court can show benevolence inexercising its powers favourably, but afterprima facie assessment of thecircumstances/material mentioned above.On the other hand, where the prosecutionevidence is almost complete or after theconclusion of the evidence the matter isat the stage of argument, normally the HighCourt should refrain from exercising itspower under Section 482 of the Code, asin such cases the trial court would be ina position to decide the case finally onmerits…” This Court held, while dealingwith an offence under Section 307 of thePenal Code that the following circumstanceshad weighed with it in quashing the FirstInformation Report:

"33. We have gone through the FIRas well which was recorded on thebasis of statement of the complainant/victim. It gives an indication that thecomplainant was attacked allegedlyby the accused persons because ofsome previous dispute between theparties, though nature of dispute etc.is not stated in detail.However, a verypertinent statement appears onrecord viz., "respectable persons havebeen trying for a compromise up tillnow, which could not be finalized".This becomes an important aspect.It appears that there have been somedisputes which led to the aforesaidpurported attack by the accused on

the complainant. In this context whenwe find that the elders of the village,including Sarpanch, intervened in thematter and the parties have not onlyburied their hatchet but have decidedto live peacefully in future, thisbecomes an important consideration.The evidence is yet to be led in theCourt. It has not even started. In viewof compromise between parties, thereis a minimal chance of the witnessescoming forward in support of theprosecution case. Even thoughnature of injuries can still beestablished by producing the doctoras witness who conducted medicalexamination, it may become difficultto prove as to who caused theseinjuries. The chances of conviction,therefore, appear to be remote. Itwould, therefore, be unnecessary todrag these proceedings...”

12 In State of Maharashtra v Vikram AnantraiDoshi (2014) 15 SCC 29, a bench of twolearned Judges of this Court explained theearlier decisions and the principles whichmust govern in deciding whether a criminalproceeding involving a non-compoundableoffence should be quashed. In that case,the respondents were alleged to haveobtained Letters of Credit from a bank infavour of fictitious entities. The charge-sheetinvolved offences under Sections 406, 420,467, 468, and 471 read with Section 120-B of the Penal Code. Bogus beneficiarycompanies were alleged to have got themdiscounted by attaching fabricated bills. MrJustice Dipak Misra (as the learned ChiefJustice then was) emphasised that the caseinvolved an allegation of forgery; hence the


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court was not dealing with a simple casewhere “the accused had borrowed moneyfrom a bank, to divert it elsewhere”. Thecourt held that the manner in which Lettersof Credit were issued and funds weresiphoned off had a foundation in criminallaw:

“… availing of money from anationalized bank in the manner, asalleged by the investigating agency,vividly exposits fiscal impurity and,in a way, financial fraud. The modusoperandi as narrated in thechargesheet cannot be put in thecompartment of an individual orpersonal wrong. It is a social wrongand it has immense societal impact.It is an accepted principle of handlingof finance that whenever there ismanipulation and cleverly conceivedcontrivance to avail of these kind ofbenefits it cannot be regarded as acase having overwhelmingly andpredominatingly of civil character. Theultimate victim is the collective. Itcreates a hazard in the financialinterest of the society. The gravityof the offence creates a dent in theeconomic spine of the nation.” Thejudgment of the High Court quashingthe criminal proceedings was henceset aside by this Court.

13 The same principle was followed inCentral Bureau of Investigation v ManinderSingh (2016) 1 SCC 389 by a bench oftwo learned Judges of this Court. In thatcase, the High Court had, in the exerciseof its inherent power under Section 482quashed proceedings under Sections 420,

467, 468 and 471 read with Section 120-B of the Penal Code. While allowing theappeal filed by the Central Bureau ofInvestigation Mr Justice Dipak Misra (asthe learned Chief Justice then was) observedthat the case involved allegations of forgeryof documents to embezzle the funds of thebank. In such a situation, the fact that thedispute had been settled with the bankwould not justify a recourse to the powerunder Section 482:

“…In economic offences Court mustnot only keep in view that money hasbeen paid to the bank which hasbeen defrauded but also the societyat large. It is not a case of simpleassault or a theft of a trivial amount;but the offence with which we areconcerned is well planned and wascommitted with a deliberate designwith an eye of personal profitregardless of consequence to thesociety at large. To quash theproceeding merely on the ground thatthe accused has settled the amountwith the bank would be a misplacedsympathy. If the prosecution againstthe economic offenders are notallowed to continue, the entirecommunity is aggrieved."

14 In a subsequent decision in State ofTamil Nadu v R Vasanthi Stanley (2016)1SCC 376 , the court rejected the submissionthat the first respondent was a woman“who was following the command of herhusband” and had signed certain documentswithout being aware of the nature of thefraud which was being perpetrated on thebank. Rejecting the submission, this Court


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held that:

“... Lack of awareness, knowledgeor intent is neither to be considerednor accepted in economic offences.The submission assiduouslypresented on gender leaves usunimpressed. An offence under thecriminal law is an offence and it doesnot depend upon the gender of anaccused. True it is, there are certainprovisions in Code of CriminalProcedure relating to exercise ofjurisdiction Under Section 437, etc.therein but that altogether pertainsto a different sphere. A personcommitting a murder or gettinginvolved in a financial scam or forgeryof documents, cannot claimdischarge or acquittal on the groundof her gender as that is neitherconstitutionally nor statutorily a validargument. The offence is genderneutral in this case. We say no moreon this score…” “…A grave criminaloffence or serious economic offenceor for that matter the offence that hasthe potentiality to create a dent inthe financial health of the institutions,is not to be quashed on the groundthat there is delay in trial or theprinciple that when the matter hasbeen settled it should be quashedto avoid the load on the system…”15 The broad principles which emergefrom the precedents on the subject,may be summarised in the followingpropositions :

(i) Section 482 preserves the inherent powersof the High Court to prevent an abuse of

Parbatbhai Aahir @ Parbatbhai Bhimsnhbhai Karmur& Ors.,Vs.State of Gujarat 33the process of any court or to secure theends of justice. The provision does not confernew powers. It only recognises andpreserves powers which inhere in the HighCourt;

(ii) The invocation of the jurisdiction of theHigh Court to quash a First InformationReport or a criminal proceeding on theground that a settlement has been arrivedat between the offender and the victim isnot the same as the invocation of jurisdictionfor the purpose of compounding an offence.While compounding an offence, the powerof the court is governed by the provisionsof Section 320 of the Code of CriminalProcedure, 1973. The power to quash underSection 482 is attracted even if the offenceis non-compoundable.

(iii) In forming an opinion whether a criminalproceeding or complaint should be quashedin exercise of its jurisdiction under Section482, the High Court must evaluate whetherthe ends of justice would justify the exerciseof the inherent power;

(iv) While the inherent power of the HighCourt has a wide ambit and plenitude ithas to be exercised; (i) to secure the endsof justice or (ii) to prevent an abuse of theprocess of any court;

(v) The decision as to whether a complaintor First Information Report should bequashed on the ground that the offenderand victim have settled the dispute, revolvesultimately on the facts and circumstancesof each case and no exhaustive elaborationof principles can be formulated;

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(vi) In the exercise of the power underSection 482 and while dealing with a pleathat the dispute has been settled, the HighCourt must have due regard to the natureand gravity of the offence. Heinous andserious offences involving mental depravityor offences such as murder, rape anddacoity cannot appropriately be quashedthough the victim or the family of the victimhave settled the dispute. Such offencesare, truly speaking, not private in naturebut have a serious impact upon society.The decision to continue with the trial insuch cases is founded on the overridingelement of public interest in punishingpersons for serious offences;

(vii) As distinguished from serious offences,there may be criminal cases which havean overwhelming or predominant elementof a civil dispute. They stand on a distinctfooting in so far as the exercise of theinherent power to quash is concerned;

(viii) Criminal cases involving offences whicharise from commercial, financial, mercantile,partnership or similar transactions with anessentially civil flavour may in appropriatesituations fall for quashing where partieshave settled the dispute;

(ix) In such a case, the High Court mayquash the criminal proceeding if in view ofthe compromise between the disputants,the possibility of a conviction is remote andthe continuation of a criminal proceedingwould cause oppression and prejudice; and

(x) There is yet an exception to the principleset out in propositions (viii) and

(ix) above. Economic offences involving thefinancial and economic well-being of thestate have implications which lie beyondthe domain of a mere dispute between privatedisputants. The High Court would be justifiedin declining to quash where the offenderis involved in an activity akin to a financialor economic fraud or misdemeanour. Theconsequences of the act complained ofupon the financial or economic system willweigh in the balance.

16 Bearing in mind the above principleswhich have been laid down in the decisionsof this Court, we are of the view that theHigh Court was justified in declining toentertain the application for quashing theFirst Information Report in the exercise ofits inherent jurisdiction. The High Court hasadverted to two significant circumstances.Each of them has a bearing on whetherthe exercise of the jurisdiction under Section482 to quash the FIR would subserve orsecure the ends of justice or prevent anabuse of the process of the court. The firstis that the appellants were absconding andwarrants had been issued against themunder Section 70 of the Code of CriminalProcedure, 1973. The second is that theappellants have criminal antecedents,reflected in the chart which has beenextracted in the earlier part of this judgment.The High Court adverted to the modusoperandi which had been followed by theappellants in grabbing valuable parcels ofland and noted that in the past as well,they were alleged to have been connectedwith such nefarious activities by openingbogus bank accounts. It was in this viewof the matter that the High Court observedthat in a case involving extortion, forgery

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and conspiracy where all the appellantswere acting as a team, it was not in theinterest of society to quash the FIR on theground that a settlement had been arrivedat with the complainant. We agree with theview of the High Court. The present case,as the allegations in the FIR woulddemonstrate, is not merely one involvinga private dispute over a land transactionbetween two contesting parties. The caseinvolves allegations of extortion, forgery andfabrication of documents, utilization offabricated documents to effectuate transfersof title before the registering authorities andthe deprivation of the complainant of hisinterest in land on the basis of a fabricatedpower of attorney. If the allegations in theFIR are construed as they stand, it is evidentthat they implicate serious offences havinga bearing on a vital societal interest insecuring the probity of titles to or interestin land. Such offences cannot be construedto be merely private or civil disputes butimplicate the societal interest in prosecutingserious crime. In these circumstances, theHigh Court was eminently justified indeclining to quash the FIR which had beenregistered under Sections 384, 467, 468,471, 120-B and 506(2) of the Penal Code.

17 We do not, for the above reasons, findany merit in the appeal. The Criminal Appealshall accordingly stand dismissed.

--X--

2017 (3) L.S. 35 (S.C)

IN THE SUPREME COURT OF INDIA

NEW DELHI

Present:


Adarsh Kumar Goel


Uday Umesh Lalit

M/s.Meters & Instruments

Pvt.Ltd., ..Appellants

Vs.

Kanchan Mehta ..Respondents

NEGOTIABLE INSTRUMENTSACT, Secs.138, 139 & 143 - CRIMINALPROCEDURE CODE,Sec.258 and 357(1)(b) – Question as to how proceedingsfor an offence U/Sec. 138 of NI Act canbe regulated, where the accused iswilling to deposit cheque amount –Whether in such a case, proceedingscan be closed or exemption grantedfrom personal appearance or any otherorder can be passed.

Respondent filed complaintalleging that appellants were to pay amonthly amount to her under anagreement – Cheque was given indischarge of legal liability but the samewas returned unpaid for want ofsufficient funds – In spite of service oflegal notice amount was not paid.

Held – The object of Sec.138 ofNI Act was described to be both punitive

Crl.A.NO. 1731/2017 Date:5-10-2017

M/s.Meters & Instruments Pvt.Ltd., Vs. Kanchan Mehta 35

80

as well as compensatory – Complainantcould be given not only cheque amountbut double the amount so as to coverinterests and costs – The LawCommission in its 213th Report, notedthat out of total pendency of 1.8 crorescases in the country, 38 lakh cases about(20% of total pendency) are related tosection 138 of NI Act – Where chequeamount with interest and costs asassessed by the court is paid by aspecified date, the court is entitled toclose proceedings in exercise of itspowers U/S 143 of NI Act read with 258Cr.P.C – It is open to court to explorepossibility of settlement and considerprovisions of plea bargaining – Trialcan be on day to day basis andendeavour must be to conclude it withinsix months.

J U D G M E N T(per the Hon’ble Mr.Justice

Adarsh Kumar Goel)

1. Leave granted. These appeals have beenpreferred against the order dated 21st April,2017 of the High Court of Punjab andSignature Not Verified Haryana atChandigarh in CRLM Nos.13631, 13628 and13630 of Digitally signed by MADHU BALADate: 2017.10.06 05:24:42 IST Reason:2017. The High Court rejected the prayerof the appellants for compounding theoffence under Section 138 of the NegotiableInstruments Act, 1881 (the Act) on paymentof the cheque amount and in the alternativefor exemption from personal appearance.

2. When the matters came up for hearingbefore this Court earlier, notice was issued

to consider the question “as to howproceedings for an offence under Section138 of the Act can be regulated where theaccused is willing to deposit the chequeamount. Whether in such a case, theproceedings can be closed or exemptiongranted from personal appearance or anyother order can be passed.” The Court alsoappointed Mr. K.V. Viswanathan, learnedsenior counsel to assist the Court as amicusand Mr. Rishi Malhotra, learned counsel toassist the amicus. Accordingly, learnedamicus has made his submissions andalso filed written submissions duly assistedby S/Shri Rishi Malhotra, Ravi Raghunath,Dhananjay Ray and Sidhant Buxy,advocates. We place on record ourappreciation for the services rendered bylearned amicus and his team.

3. Few Facts: The Respondent KanchanMehta filed complaint dated 15th July, 2016alleging that the appellants were to pay amonthly amount to her under an agreement.Cheque dated 31 st March, 2016 was givenfor Rs.29,319/- in discharge of legal liabilitybut the same was returned unpaid for wantof sufficient funds. In spite of service of legalnotice, the amount having not been paid,the appellants committed the offence underSection 138 of the Act. The Magistrate videorder dated 24th August, 2016, afterconsidering the complaint and thepreliminary evidence, summoned theappellants. The Magistrate in the order dated9 th November, 2016 observed that the casecould not be tried summarily as sentenceof more than one year may have to bepassed and be tried as summons case.Notice of accusation dated 9th November,2016 was served under Section 251 Cr.P.C.


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4. Appellant No.2, who is the Director ofappellant No.1, made a statement that hewas ready to make the payment of thecheque amount. However, the complainantdeclined to accept the demand draft. Thecase was adjourned for evidence. Theappellants filed an application under Section147 of the Act on 12 th January, 2017relying upon the judgment of this Court inDamodar S. Prabhu versus Sayed BabalalH.(2010) 5 SCC 663 The application wasdismissed in view of the judgment of thisCourt in JIK Industries Ltd. versus Amarlalversus Jumani (2012) 3 SCC 255 whichrequired consent of the complainant forcompounding. The High Court did not findany ground to interfere with the order ofthe Magistrate. Facts of other two casesare identical. Hence these appeals.

5. We have heard learned counsel for theparties and learned amicus who has beenduly and ably assisted by S/Shri RishiMalhotra, Ravi Raghunath, Dhananjay Rayand Sidhant Buxy, advocates. We proceedto consider the question.

6. The object of introducing Section 138and other provisions of Chapter XVII in theAct in the year 1988 Vide the Banking,Public Financial Institutions and NegotiableInstruments Laws (Amendment) Act, 1988was to enhance the acceptability of chequesin the settlement of liabilities. The drawerof cheque is made liable to prosecution ondishonour of cheque with safeguards toprevent harassment of honest drawers. TheNegotiable Instruments (Amendment andMiscellaneous Provisions) Act, 2002 toamend the Act was brought in, inter-alia,to simplify the procedure to deal with suchmatters. The amendment includes provisionfor service of summons by Speed Post/

Courier, summary trial and making theoffence compoundable.

7. This Court has noted that the object ofthe statute was to facilitate smoothfunctioning of business transactions. Theprovision is necessary as in manytransactions cheques were issued merelyas a device to defraud the creditors.Dishonour of cheque causes incalculableloss, injury and inconvenience to the payeeand credibility of business transactionssuffers a setback Goa Plast (P) Ltd. v.Chico Ursula D’Souza (2004) 2 SCC 235At the same time, it was also noted thatnature of offence under Section 138 primarilyrelated to a civil wrong and the 2002amendment specifically made itcompoundable Vinay Devanna Nayak v.Ryot Sewa Sahakari Bank Ltd.(2008) 2 SCC305. The offence was also described as‘regulatory offence’. The burden of proofwas on the accused in view of presumptionunder Section 139 and the standard of proofwas of “preponderance of probabilities”Rangappa v. Sri Mohan (2010) 11 SCC 7R. Vijayan v. Baby (2012) 1 SCC 260 .The object of the provision was describedas both punitive as well as compensatory.The intention of the provision was to ensurethat the complainant received the amountof cheque by way of compensation. Thoughproceedings under Section 138 could notbe treated as civil suits for recovery, thescheme of the provision, providing forpunishment with imprisonment or with finewhich could extend to twice the amountof the cheque or to the both, made theintention of law clear. The complainant couldbe given not only the cheque amount butdouble the amount so as to cover interestand costs. Section 357(1)(b) of the Cr. P.C.provides for payment of compensation for

M/s.Meters & Instruments Pvt.Ltd., Vs. Kanchan Mehta 37

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the loss caused by the offence out of thefine. Where fine is not imposed,compensation can be awarded underSection 357(3) Cr.P.C. to the person whosuffered loss. Sentence in default can alsobe imposed. The object of the provision isnot merely penal but to make the accusedhonour the negotiable instrumentsLafargeAggregates & Concrete India (P) Ltd. v.Sukarsh Azad (2014) 13 SCC 779 .

8. In view of the above scheme, this Courtheld that the accused could make anapplication for compounding at the first orsecond hearing in which case the Courtought to allow the same. If such applicationis made later, the accused was requiredto pay higher amount towards costetcDamodar S. Prabhu (supra) . This Courthas also laid down that even if the paymentof the cheque amount, in terms of proviso(b) to Section 138 of the Act was not made,the Court could permit such payment beingmade immediately after receiving notice/summons of the court(2006) 6 SCC 456,(2007) 6 SCC 555. The guidelines inDamodar (Supra) have been held to beflexible as may be necessary in a givensituation Para 23 in Madhya Pradesh StateLegal Services Authority versus Prateek Jainand Anr. (2014) 10 SCC 690 . Since theconcept of compounding involves consentof the complainant, this Court held thatcompounding could not be permitted merelyby unilateral payment, without the consentof both the parties.Rajneesh Aggarwal v.Amit J. Bhalla (2001) 1 SCC 631.

9. While the object of the provision wasto lend credibility to cheque transactions,the effect was that it put enormous burden

on the courts’ dockets. The LawCommission in its 213 th Report, submittedon 24th November, 2008 noted that out oftotal pendency of 1.8 crores cases in thecountry (at that time), 38 lakh cases (about20% of total pendency) related to Section138 of the Act. This Court dealt with theissue of interpretation of 2002 amendmentwhich was incorporated for simplified andspeedy trials. It was held that the saidprovision laid down a special code to doaway with all stages and processes inregular criminal trial Mandvi CooperativeBank Ltd. v.Nimesh B. Thakore(2010) 3SCC 83, paras 25, 26. This Court held thatonce evidence was given on affidavit, theextent and nature of examination of suchwitness was to be determined by the Court.The object of Section 145(2) was simplerand swifter trial procedure. Only requirementis that the evidence must be admissibleand relevant. The affidavit could also provedocuments Para 41, ibid . The schemeof Sections 143 to 147 of the Act was adeparture from provisions of Cr.P.C. and theEvidence Act and complaints could be triedin a summary manner except where theMagistrate feels that sentence of more thanone year may have to be passed. Even insuch cases, the procedure to be followedmay not be exactly the same as in Cr.P.C.The expression “as far as possible” inSection 143 leaves sufficient flexibility forthe Magistrate so as not to affect the quickflow of the trial process. The trial has toproceed on day to day basis with endeavourto conclude the same within six months.Affidavit of the complainant can be read asevidence. Bank’s slip or memo of chequedishonour can give rise to the presumptionof dishonour of the cheque, unless and untilthat fact was disproved.


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